Baafe v Sapia [2018] PGNC 79; N7123 (23 January 2018)

N7123

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 1 OF 2017

BETWEEN
EDWIN BAAFE
Petitioner

AND
HON. PETER SAPIA
First Respondent

AND
ELECTORAL COMMISSION
Second Respondent

Madang: Makail, J
2018: 22^nd & 23^rd January

ELECTION PETITION – Objection to competency of petition – Grounds of – Insufficient facts – Failure to plead relief – Failure to plead occupation of attesting witness – Strict compliance with requisites of petition mandatory – Organic Law on National and Local-level Government Elections – Section 208 (a), (b) & (d)

Cases cited:

Michael Korry v. Mogerema Sigo Wei & Electoral Commission (2013) N5415
Peter Isoaimo v. Paru Aihi (2012) N4921
Sir Arnold Amet v Peter Charles Yama (2010) SC1064

Counsel:
Mr. D. Wa’au, for Petitioner
Mr. B. S. Lai, for First Respondent

Mr. J. Ole with Mr. M. Kuma, for Second Respondent

RULING ON OBJECTION TO COMPETENCY

23^rd January, 2018

1. MAKAIL, J: In the General election held in 2017, the first respondent was returned by the people of Rai Coast Open electorate as their member of the National Parliament. His win is being disputed by the petitioner in this petition.
   

Grounds of Objection to Competency

2. Before the Court may inquire into the allegations in the petition, it must be satisfied that the petition is competent. The question of competence is based on two notices of objection to competency; one filed by the first respondent on 4^th October 2017 and the other by the second respondent on 2^nd October 2017.
   
3. The first respondent was allowed to move his objection. The second respondent was not because there was no proof of service of the objection on the petitioner and the latter would be disadvantaged if the former were allowed to move its objection on short notice.
   
4. The first respondent’s objection is based on the ground that the petition failed to meet three of the requisites of a petition under Section 208 (a), (b) & (d) of the Organic Law on National and Local-level Government Elections (“Organic Law”).
   
5. First, it lacked facts to constitute grounds to declare the first respondent not duly elected, or void the election of the first respondent, or recount of votes, second, failed to plead the relief being sought and third, one of the attesting witnesses failed to state his occupation.
   
6. The second ground, that is, failure to plead relief being sought, was abandoned by the first respondent at the hearing. For this reason, it will not be considered.
   

Principles of Pleadings

7. As to the first ground, much has been said and discussed about pleadings in a petition; how to plead facts, what facts should be and not be pleaded, length of the pleadings, its clarity and conciseness and what it must convey to a reader.
   
8. Allegations may be many, but a purpose driven pleading will tell the reader what the allegation in each case is without much trouble, sets out the material facts constituting the ground to void the election, or declare the candidate elected not to be duly elected and that the petitioner be declared as duly elected, or a recount of votes, and short, concise and clear.
   
9. In my respectful view, a short, concise and clear pleading is one that is chronological in terms of occurrence of events, identifies the events, logical, clear and precise about the point of contention or complaint. A petition which does not have these attributes is more likely to be found incompetent and dismissed than not.
   
10. The technique of drafting a petition is supposed to be a simple and straight forward rather than one of academic debate with no lasting solution. Keeping it simple should be the message and way to go if a petition is said to be the only means by which an election of a member of the Parliament or result of an election can be disputed.
    

Grounds of Petition

11. Can we say the petition in this case has these attributes? According to the petitioner, the petition is based on the following grounds:
    

11.1. Bribery,
11.2. Undue Influence, and
11.3. Illegal practices at polling.

12. The petition is divided into three parts. The facts are set out under the heading “THE FACTS” at paragraphs 1 to 11. The grounds are set out under “THE GROUNDS” at paragraphs 1 to 9 and the relief are set out under “THE RELIEF” at paragraphs i to vi.
    
13. The structure may be one of style rather than content because to separate the facts constituting the grounds, from the grounds itself, can be confusing and misleading.
    
14. The facts set out at paragraphs 1 to 11 under the heading “THE FACTS” refer to bribery, undue influence, tampering of a ballot-box, double voting, casting of votes under acts of violence, threat and intimidation by supporters of the first respondent, polling conducted without security personnel and scrutineers, extra ballot-papers issued, polling at uninhabited locations and the Returning Officer Mr. Cherobim Lai was arrested and charged with manipulating the elections.
    
15. From this, there is no clear distinction between these grounds. It is convoluted, hence difficult to work out what is being alleged against the respondents. This is the first problem with this petition as far as the structure is concerned.
    

Bribery

16. When the content is considered, first, the allegations of bribery will not be considered because at directions hearing in Waigani, the petitioner abandoned it.
    
17. This leaves only the allegations of undue influence and illegal practices at polling to be considered.
    

Undue Influence

18. The allegation of undue influence is based on the criminal offence of undue influence under Section 102 of the Criminal Code. Section 102 states:
    

102. Undue influence.

A person who—

(a) uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind to an elector—

(i) in order to induce him to vote or refrain from voting at an election; or

(ii) on account of his having voted or refrained from voting at an election; or

(b) by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election,

is guilty of a misdemeanour.

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

19. The elements of the offence of undue influence under Section 102(a) are:
    

19.1. The identity of the offender;

19.2. The form of threat, force or restraint used, or on account of his having voted or refrained from voting;
19.3. Inducement to vote or refrain from voting;

19.4. The identity of the person threaten, forced or restrained (unduly influenced); and

19.5. The person is an elector.

20. To sustain an offence under Section 102(b) the petitioner must plead and prove that the first respondent:
    

20.1. by force or fraud; and

20.2. prevented or obstructed the free exercise of the franchise by an elector or compelled or induced the elector to vote or refrain from voting at an election.

(See Peter Isoaimo v. Paru Aihi (2012) N4921.)

21. As it is allegedly committed during election, there are two additional requirements under Section 215 of the Organic Law. Section 215 states:
    

“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

(2) ...........

(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 a 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.” (Underlining is mine).

22. They are:
    

(a) The offence was committed by a candidate; or

(b) If not, it was committed with the candidate’s knowledge or authority.

23. With respect, I adopt the comments by Salika DCJ and Batari J in Sir Arnold Amet v Peter Charles Yama (2010) SC1064 in relation to the terms ‘knowledge’ and ‘authority’ found in section 215(3)(a) of the Organic Law. Their Honours said in their joint judgement that, the terms “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”.
    
24. The petitioner relied on the case of Michael Korry v. Mogorema Sigo Wei & Electoral Commission (2013) N5415 and submitted that it is sufficient to plead that the Returning Officer and Assistant Returning Officer whose names are pleaded are “supporters and cronies” of the first respondent when they tampered with the ballot-boxes and/or manipulated the polling by moving the polling locations to uninhabited locations and votes were cast without any voters attending.
    
25. By this pleading, it connected the illegal act or practice of the Returning Officer and Assistant Returning Officer to the first respondent. Thus, for the respondents to insist on more facts is nit-picking and goes to matters of evidence for trial.
    
26. The Michael Korry case must be understood in its context to avoid it being quoted out of context. One of the allegations in that case was illegal practice at polling. It was to do with double voting. The identity of the perpetrators was in issue. The respondents argued that the pleadings failed to disclose the names of the Returning Officer and secondly, names of the first respondent’s wife and children who were alleged to have voted multiple times.
    
27. It also did not state the name of the first respondent’s nephew who allegedly marked out all of the ballot-papers in favour of the first respondent. The Court held that except for their names, the identities of the alleged perpetrators were pleaded and sufficient to assist the respondents identify them.
    
28. The decision did not stand for the proposition that it is sufficient to plead and rely on “supporters and cronies” of the successful candidate in order to connect their actions or conduct which is alleged to be illegal to the successful candidate. It is, therefore, irrelevant and of no use to this case.
    
29. What it means is that the petitioner may assert that he has named the Returning Officer and Assistant Returning Officer as the persons who allegedly allowed double voting to take place at the named locations including the uninhabited polling locations of Dana to Sewe areas of Naho Rawa LLG.
    
30. But what is lacking, missing and even vague and unclear is whether what the Returning Officer and Assistant Returning Officer did was with the knowledge or authority of the first respondent.
    
31. For anyone can claim to be a supporter or crony of a successful candidate/member and commit an illegal act or engage in an illegal practice during election but if the successful candidate/member is not aware or did not authorise it, why should he be held responsible and penalised for something he was never part of?
    
32. The law recognises this and makes that distinction in Section 215(3)(a) of the Organic Law to protect the successful candidate/member and the integrity of the electoral process from being abused. So must the petitioner make this distinction when preparing this petition.
    
33. There is no allegation that the illegal acts or practices at polling were with the knowledge or authority of the first respondent. And just because someone like the Returning Officer and Assistant Returning Officer are “supporters and cronies” of the first respondent does not mean that what they allegedly did was with the “knowledge” or “authority” of the first respondent under Section 215 (3) (a) of the Organic Law.
    
34. Failure to make that distinction and to simply make a general allegation that these persons were supporters or cronies of the first respondent had resulted in no foundation in the pleadings for evidence to be called to prove and hold the first respondent liable for the actions or conduct of the Returning Officer and Assistant Returning Officer.
    
35. Under “THE FACTS”, paragraph 2 refers to the first respondent committing undue influence and foul play at polling with the assistance of the Assistant Returning Officer when he possessed a ballot-box no: 105756 for Durukopo to Naiko area of Naho Rawa LLG by Polling Team No: 86.
    
36. Then it refers to the subject ballot-box being tampered with when its seal was removed by polling officials while in transit to Madang.
    
37. In submissions, counsel for the petitioner tried to clarify these allegations by putting forward two propositions; first, the offence of undue influence was committed by the first respondent in person and second, by the Assistant Returning Officer because he is a supporter or crony of the first respondent.
    
38. Taking the first case, if the first respondent is the perpetrator, there are no facts pleaded to show the form of threat, force, or restraint used by the first respondent to persons who are electors to induce them to vote or refrain from voting in the election.
    
39. Secondly, the identity of the person(s) threatened, forced to vote or restrained from voting, thirdly, that the person(s) is an elector.
    
40. These are material facts constituting an offence of undue influence under Section 102(a) of the Criminal Code but are lacking or missing.
    
41. If the allegation is based on Section 102(b) of the Criminal Code, it suffers from the same deficiencies. There are no facts pleaded to show the force or fraud committed by the first respondent to prevent or obstruct the free exercise of the franchise by an elector to vote or refrain from voting at the election.
    
42. Secondly, the identity of the person(s) forced to vote or restrained from voting and if he is an elector.
    
43. These are material facts constituting an offence of undue influence under Section 102(b) of the Criminal Code but are lacking or missing.
    
44. If the second case is to advance beyond this stage, a replica of the facts under the first case must be pleaded to constitute the offence of undue influence under Section 102(a) or Section 102(b) of the Criminal Code. In addition, the facts pleaded must show that what the Assistant Returning Officer did was with the knowledge or authority of the first respondent: Section 215(3)(a) of the Organic Law.
    
45. It is clear that these facts are lacking or missing.
    
46. Given the number of elements constituting the offence of undue influence, what may constitute the offence of undue influence is not an illegal act or practice if it is alleged that the first respondent with the Assistant Returning Officer “possessed” a ballot-box.
    
47. It is unclear if having in possession a ballot-box is an illegal act or practice because it is unsupported by facts. Furthermore, it is based on an assumption that it is illegal for a person to possess a ballot-box and constitutes undue influence. This allegation is premised on a misapplication of Section 102 of the Criminal Code.
    
48. If the true allegation is one of tampering of ballot-box, it also suffers from the same deficiencies. There are no facts pleaded to show the identity of the person who tampered with the ballot-box, the act constituting the tampering and date of the alleged tampering.
    
49. One cannot assume that it may be the first respondent or the Assistant Returning Officer who tampered with the ballot-box because an allegation of undue influence is separate and distinct from an allegation of tampering: Section 191(14) of the Organic Law. The failure to make that distinction highlights the point made earlier that, that pleadings must be clear and concise and where it is not, it results in confusion and may be misleading.
    
50. As tampering with a ballot-paper is an offence under Section 191 of the Organic Law and constitute an illegal practice under Section 215(3)(b) of the Organic Law, the Court must be satisfied that by the illegal act, the result of the election was likely to be affected and that it is just that the candidate elected should be declared not to be duly elected or that the election should be declared void.
    
51. Paragraph 2 does not plead the total number of ballot-papers found in the subject ballot-box and the total number of votes collected by the first respondent at the final count and likewise, the total number of votes collected by the petitioner at final count to show if the result of the election was likely to be affected.
    
52. The allegations at paragraph 2 are lacking in many material aspects, and are incompetent and struck out.
    
53. Under “THE FACTS”, paragraph 3 refers to the first respondent committing undue influence and foul play at polling with the assistance of the Assistant Returning Officer to influence voters to cast vote for him at Naho Rawa LLG through acts of violence, threat and intimidation by supporters of the first respondent.
    
54. The facts, as they are, refer to violence, threat and intimidation of voters in a general way. What is lacking or missing are facts in relation to the identity of the person(s) who are said to be an elector and was threatened, or intimidated to vote, or restrained from voting by the supporters of the first respondent, the identity of the person(s) who threatened, or forced to vote, or restrained an elector(s) from voting.
    
55. In my view, the reference to “supporters” of the first respondent is vague, too general and insufficient to assist the respondents to identify the persons involved to respond to the allegation.
    
56. Significantly, there are no facts to show that the first respondent in person used or threatened to use force, or restraint to an elector(s) to induce him to vote, or refrain from voting at Naho Rawa LLG. Finally, it has not been pleaded that the actions or conduct of the Assistant Returning Officer and “supporters” were with the knowledge or authority of the first respondent.
    
57. The allegation at paragraph 3 is incompetent and struck out.
    
58. Under “THE FACTS”, paragraph 4 refers to polling at Naho Rawa LLG being conducted without security personnel and scrutineers. This gave the polling officials the opportunity to tamper with ballot-papers in favour of the winning candidate, the first respondent.
    
59. Given the state of the pleadings, the same sort of allegation is made under “THE FACTS” at paragraph 11, that is, lack of official security during polling at Naho Rawa area, so I will consider them together.
    
60. There is no law that says that it is illegal to conduct polling without security personnel: see Section 191 of the Organic Law. I am aware that there is provision for scrutineers of candidates to be present at polling. It may be that polling without scrutineers’ presence may be an error or omission by electoral officials but it is not illegal: see Sections 127 and 129 of the Organic Law.
    
61. Thus, on its own, the allegation is misconceived. But if it is connected to the allegation of tampering of ballot-papers, the allegation assumed that ballot-papers may have been tampered with. Moreover, there are no facts to identify the act constituting the tampering. Was it a case of a person or group of persons filling in the ballot-papers in favour of the first respondent without a polling being conducted or removing ballot-papers with votes cast in favour of other rival candidates? This fact is lacking or missing.
    
62. If the allegation of tampering is connected to the allegation under “THE FACTS” at paragraphs 5 to 6, this allegation refers to polling at an uninhabited location in Dana to Sewe areas of Naho Rawa LLG.
    
63. 2,079 ballot-papers were issued. At Count No. 14, 981 votes were collected by the first respondent. Then, 3,000 extra ballot-papers were cast in that same area. Polling Team No. 87 conducted polling in that area and at Count No. 8, 1,900 votes were cast from which the first respondent collected 1,323 votes.
    
64. It may be that polling was conducted at an uninhabited location but that in itself is not illegal. There must be facts which are lacking or missing to show that the uninhabited location was not an approved or authorised polling location: Section 113 of the Organic Law. In the absence of this, it is assumed that the polling location is an approved or authorised one and votes cast are formal or valid unless rejected at scrutiny by way of an objection following the procedure under Section 153A of the Organic Law.
    
65. A further material fact which is lacking or missing is how the result of the election was likely to be affected. So far the figures given by the petitioner show how many votes the first respondent received at the disputed polling location and disputed ballot-box but there are no figures to show the total number of votes collected by the first respondent at the final count and likewise, the total number of votes collected by the petitioner at final count to show if the result of the election was likely to be affected.
    
66. Where the figures are lacking or missing, it would be pointless for the parties to proceed to trial and work out if the result of the election was likely to be affected. And it is not for the respondents and the Court to even guess what is going to happen at trial if this allegation is allowed to proceed.
    
67. The allegations at paragraphs 4, 5 and 6 are lacking in many material aspects, and must be found to be incompetent and struck out.
    
68. The allegation at paragraph 8 under “THE FACTS” in relation to the arrest and charge of the Returning Officer is irrelevant and struck out.
    
69. The allegations at paragraphs 7, 9 and 10 under “THE FACTS” is in relation to double voting at Ranara village and Naiko village of Naho Rawa LLG where votes collected from these polling locations at Count No. 14 by Polling Team No. 87 were counted for the first respondent.
    
70. The facts which are lacking or missing are; the date(s) of polling where the alleged double voting occurred, identity of the person(s) who double voted and that the Returning Officer and Assistant Returning Officer allowed the illegal act with the knowledge or authority of the first respondent: Section 215(3) (a) of the Organic Law.
    
71. In addition, it suffers from the same deficiency as the previous allegation. A material fact which is lacking or missing is how the result of the election was likely to be affected. No figures are given by the petitioner show how many votes the first respondent received at the disputed polling locations at Ranara village and Naiko village and disputed ballot-boxes to show the total number of votes collected by the first respondent at the final count and likewise, the total number of votes collected by the petitioner at final count to show if the result of the election was likely to be affected.
    
72. As I said above, where figures are lacking or missing, it would be pointless for the parties to proceed to trial and work out if the result of the election was likely to be affected. And it is not for the respondents and the Court to even guess what is going to happen at trial if this allegation is allowed to proceed.
    
73. It must be the case that the allegations at paragraphs 7, 9 and 10 are lacking in many material aspects, and must be found to be incompetent and struck out.
    
74. The statements under “THE GROUNDS” from paragraphs 1 to 9 are, in my view, a summation of the facts set out at paragraphs 1 to 11 under “THE FACTS”. They need no further explanation/comment, save to say that if the allegations are found to be incompetent, they must go as well.
    

Defective Attesting Witnesses

75. The first respondent submitted that the first attesting witness, Gedion Augustine has stated his address but failed to state his occupation, as required by Section 208(d) of the Organic Law.
    
76. The petitioner conceded that the petition failed to state the occupation of Mr. Augustine. However, relying on the Michael Korry case, the petitioner submitted that the omission is not fatal because it has stated the address and phone numbers of Mr. Augustine.
    
77. If the purpose of disclosing the occupation and address were to inform the respondents in relation to how and where to find the attesting witnesses, the pleading of the address and phone numbers of Mr. Augustine suffices and the petition should be allowed to proceed to trial.
    
78. The petition pleaded:
    

I, GEDION AUGUSTINE of P O Box 3270 MADANG 511, Madang Province Telephone [phone] Mobile: [phone] whose signature appears below, attest that I have witnessed the signing of the Petition by the Petitioner.

.................................................
GEDION AUGUSTINE

79. Based on what has been pleaded, it is beyond argument that the petition failed to state the occupation of Mr. Augustine, a requirement under Section 208(d) of the Organic Law. It is a fundamental and material defect going to the root of the petition, its competency and survival. No amount of persuasion can cure this defect.
    
80. Given this, the petition does not meet the requisite of a petition under Section 208(d) of the Organic Law. The objection on this ground is upheld.
    

Conclusion

81. The petition is incompetent and will be dismissed. This finding is based on the grounds of objection raised by the first respondent. The second respondent supported the first respondent but did not assist much in terms of submissions. For this reason, both respondents will be awarded costs of the petition but the second respondent not be awarded part of the security deposit money held by the Registrar of the National Court.
    

Order

82. The orders are:
    

1. The first respondent’s objection to competency is upheld.

2. The petition is dismissed.
   
3. The petitioner shall pay the costs of the proceedings, to be taxed, if not agreed.
   
4. The security deposit in the sum of K5,000.00 held by the Registrar of the National Court shall be paid to the first respondent.
   

_______________________________________________________________
Ninerah Lawyers : Lawyers for Petitioner
B S Lai Lawyers : Lawyers for First Respondent
Kimbu & Associates Lawyers : Lawyers for Second Respondent