Genia v Temu [2023] PGNC 133; N10321 (13 June 2023)

N10321

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 69 OF 2022 (IECMS)

IN THE MATTER OF DISPUTED RETURN OF THE ABAU OPEN ELECTORATE

BETWEEN
KILROY KOIROBETE GENIA
- Petitioner-

AND:
PUKA TEMU
- First Respondent-

AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
-Second Respondent-

Waigani: Dowa J
2023: 6^th & 13^th June

ELECTION PETITION –– objection to competency of petition –failing to meet requirements of section 208 of OLNLLGE- late filing of filing fee and security deposit-attesting witness failing to state occupation and address-pleading facts – principles of law – grounds of petition – bribery – illegal practices, and errors and omissions –- consideration of the non-compliance having regard to application of s.217 of Organic Law–held: offending grounds struck out and balance proceeded to trial.

Cases Cited:
Delba Biri –v- Bill Ninkama [1982] PNGLR 342
William Hagahuno -v- Johnson Tuke (2020) SC2018
Olmi -v- Kuman (2002) N2319
Tulapi -v- Lagea (2013) N5323
Karo -v- Kidu [1997] PNGLR 28
Ludger Mond -v- Jeffrey Nape (2003) N2318
Undialu -v- Potape & Manase -v- Polye (2008) N3341
Wesley Raminai v Maino Pano & the Electoral Commission of Papua New Guinea (2023) N10248
Barry Holloway v Aita Iuarato and Electoral Commission [1988–89] PNGLR 99

Counsel:
D Kaima, for the Petitioner
W Bigi, for the First Respondent
J Palma, for the Second Respondent

RULING ON OBJECTIONS TO COMPETENCY OF PETITION

13^th June, 2023

1. DOWA J: This is a ruling on the two Respondents’ respective Objections to Competency on the Petition filed by the Petitioner.

Facts

2. The Petitioner is a candidate for Abau Open Electorate in the 2022 National Elections. He came third with 5,219 votes while the First Respondent was declared winner who scored 10,970 votes.
   
3. The Petitioner filed the Petition on 14^th September 2022, challenging the election of the First Respondent. The Respondents filed respective Objections to Competency on various grounds. The Second Respondent filed an Amended Notice of Objection with leave of Court on the day of hearing. Both applications were heard on 6^th June 2023, and ruling reserved which I now deliver.
   

Petition Grounds

4. The Petitioner pleads six (6) grounds of bribery and five (5) grounds of errors, omissions, and illegal practices.
   

In respect of bribery allegations, the petition pleads in grounds 1 and 6 that the First Respondent committed the act of bribery under section 103(a)(i) of the Criminal Code Act and section 215(i) of the Organic Law on National & Local-Level Government Election (the “Organic Law”). For Grounds 2 to 5, the petition pleads that the offence of bribery was committed by other persons with the knowledge and authority of the First Respondent contrary to section 103(a)(i) of the Criminal Code Act and section 215(3) of the Organic Law.

5. The five (5) grounds on alleged errors, omissions and illegal practices are:
   

Ground 7 - Failure by the Returning Officer to correct, alter, update, and maintain the Common Roll for the electorate resulting in eligible voters missing out on voting contrary to section 62(2) of the Organic Law and section 126 of the Constitution.

Ground 8 - Failure by the Electoral Commissioner and the Returning Officer to adhere to the Polling schedule contrary to section 130 of the Organic Law and section 126 of the Constitution.

Ground 9 - Committing electoral offences by a Presiding Officer at contrary to sections 191(14) and 199 of the Organic Law.

Ground 10 - Committing an illegal practice by the First Respondent contrary to section 105(1)(d) of the Criminal Code Act and section 178(1)(d) of the Organic Law.

Ground 11 - Failure by the Returning Officer to conduct proper and transparent scrutiny at the counting centre contrary to sections 147 to 151 of the Organic Law.

Objection to the Competency of the Petition

6. The Respondents object to the competency of the petition on the following grounds:
   
   • (a) Failing to file the petition within the forty (40) days contrary to section 208(e) of the Organic Law.
     
   • (b) Failing to state the occupation and address of the second attesting witness contrary to section 208(d) of the Organic Law.
     
   • (c) Failing to plead relevant and material facts as required by section 208(a) of the Organic Law.
     
   • (d) Failing to state the relief as required by section 208(b) of the Organic Law.
     

Law on Competency applications

7. Section 206 of the OLNLLGE gives jurisdiction to the National Court to hear proceedings in an election petition. Section 210 of the OLNLLGE, provides that no proceedings shall be heard on an election petition unless the requirements of sections 208, 209 and are complied with. Sections 208, 209, and 210 are set out below:
   

“208. REQUISITES OF PETITION.

A petition shall–

(a) set out the facts relied on to invalidate the election or return; and

(b) specify the relief to which the petitioner claims to be entitled; and

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court at Port Moresby or at the courthouse in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).”

209. DEPOSIT AS SECURITY FOR COSTS.

At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs.

210. NO PROCEEDINGS UNLESS REQUISITES COMPLIED WITH.
     

Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.”

8. The application of section 208 has been a subject of numerous judicial pronouncements in this jurisdiction. It has been held in Delba Biri –v- Bill Ninkama (1982) PNGLR 342 that the requirements of section 208 go to the jurisdiction of the Court of Disputed Returns and therefore are to be strictly complied with. The Supreme Court, at page 344 of the judgment, reasoned that:
   

“... The requisites in s. 208 and s. 209 are conditions precedent to instituting proceedings by way of petition to the National Court. In our view it is clear that all the requirements in s. 208 and s. 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 proceeding unless s. 208 and s. 209 are complied with.

.... it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s. 208. It is not difficult to see why. An election petition is not an ordinary cause (In Re The Norwich Election Petition; Birbeck v. Bullard (1886) 2 T.L.R. 273), 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 legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.

In our opinion it is beyond argument that if a petition does not comply with all 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.”

9. The strict approach in Delba Biri –v- Bill Ninkama (supra) has been followed and applied in many other decisions by the Supreme and National Court until the recent five (5) men bench Supreme Court decision in William Hagahuno -v- Johnson Tuke (2020) SC 2018. In Hagahuno v Tuke, the Court held that in deciding whether a petition meets the requirements of section 208 of the Organic Law, the National Court must have a fair and liberal approach without regard to legal forms and technicalities. The relevant part of the head notes to the judgment reads:

“Held:

(1) In deciding whether a petition meets the various requirements of s 208 of the Organic Law, the National Court must have regard to Schedule 1.5 of the Constitution, which requires all provisions of Constitutional Laws to be given their “fair and liberal meaning”, and this applies in particular to s 217 of the Organic Law on National and Local-Level Government Elections, which dictates that the National Court “shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not”.

(2) Section 217 applies to all aspects of the National Court’s dealing with an election petition, including hearing objections to competency of a petition. Many previous decisions especially Delba Biri v Bill Ninkama [1982] PNGLR 342, which suggested that s 217 only applies once a petition has been held to comply with the requirements of s 208, that is, at the trial of the petition, and which encouraged a strict, technical and nit-picking approach to determination of any objection to competency, had resulted in petitions that raised serious issues of electoral irregularities being dismissed unnecessarily, and which decision were no longer suitable to the circumstances of the country.”

10. The Supreme Court decision in Hagahuno, however, has not removed the obligations of a Petitioner from meeting the requirements of section 208.The law is settled in respect of meeting the requirements of section 208 (a). That is, the facts relied on to invalidate the election must be pleaded clearly and with particularity. They must be material and relevant to constitute a ground upon which an election may be invalidated and not the evidence. Refer: Biri -v- Ninkama, Holloway -v- Ivarato (1988) PNGLR 99, Olmi -v- Kuman (2002) N2319 and other cases.

11. For Bribery allegations, the material and relevant facts to be pleaded are settled in the case of Hagahuno v Tuke (supra). At paragraph 80 of the judgment, the Court said:

“80. These in essence constitutes the essential elements of the illegal act or offence of bribery. A number of cases, such as the decisions in Aihi v. Isoaimo, have clearly pointed out the essential elements that must be pleaded. There, with the agreement of my brothers, Hartshorn and Yagi JJ, I pointed out the essential elements in the following terms:

“... 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.”

12. In respect of allegations made under section 215 (3) (illegal practices) and 218 (errors or omissions by electoral officers) of the Organic Law, the law is also settled; and that is, the petition must set out facts in a clear and concise manner that the alleged illegal practices or errors and or omissions complained of are likely to affect or have affected the result of the election. Refer: Tulapi -v- Lagea (2013) N5235, Karo -v- Kidu (1997) PNGLR 28, Ludger Mond -v- Jeffrey Nape (2003) N2318, Undialu -v- Potape & Manase -v- Polye (2008) N3341.
    

Issues

13. The issues for determination are:
    
    1. Whether the second attesting witness failed to state his occupation and address as required by section 208 (d) of the OLNLLGE.
    2. Whether the petition was filed within the 40 days as required under sections 208 (e) and 209 of the Organic Law.
       
    100. Whether the petition pleads material facts meeting the requirements of section 208 (a) of the OLNLLGE.
         
    4. Whether the petition pleads sufficient facts to show how the alleged errors or omissions and illegal practices affected the results of the election for the purposes of sections 215(3) and 218 (1) of the OLNLLGE.

The Petition

14. The petition has 15 pages. It has five parts, Part A is the Introduction, Part B is the Facts, Part C contains the Grounds, Part D has the Reliefs and Part E contains a statement for payment of Security for Costs. It is pleaded and structured in accordance with Form 1, Rule 4 of the Election Petition (Miscellaneous Amendment) Rules 2022.
    

Consideration of the issues

1. Whether the second attesting witness failed to state his occupation and address on the petition rendering it incompetent for non-compliance of section 208 (d) of the Organic Law.
   
15. The Respondents contend that the second attesting Witness, Francis Genia, failed to state his occupation and address in the petition. Mr. Genia stated his occupation as “Business Development” and his address as “Korobosea, NCD.” The Respondents submit that Business Development is not an occupation but an activity. In respect of his address, the Respondents submit that Korobosea is a general location and the witness failed to state the specific Allotment and Section number. They submit the petition is incompetent as it offends section 208 (d) of the Organic Law and Rule 4 of the Election Petition Rules.
    
16. Counsel for Petitioner submits that the petition is drafted in accordance with Form I of the Election Petition (Miscellaneous Amendment) Rules 2022. The issue raised by the Respondents is technical in nature and is precluded by section 217 of the Organic Law as observed by the Supreme Court in Hagahuno v Tuke (supra).
    
17. Section 208 (d) requires that the petition shall be signed by a Candidate at the election in dispute and be attested by two (2) witnesses whose occupations and addresses are stated. Rule 4 of the Election Petition (Miscellaneous Amendment) Rules 2022, provide that the petition be drafted in accordance with Form 1. I note the petition has been drafted and structured in accordance with form 1 of the Rules. The objectionable matter relates to the occupation and address of the second attesting witness, Francis Genia, who stated his occupation as Business Development and his address as Korobosea, NCD.
    
18. It is open to argument that “Business Development” is an activity rather than an occupation. But that is the description of the occupation the witness stated as his. It is not as though nothing has been stated in the Form 1. It becomes more technical when one decides to delve deeper for its definition.
    
19. In respect of the address, the witness did not state the Section and Lot number. He merely stated “Korobosea, NCD” as his address. Korobesea is a known suburb in NCD and that is what he considered to be his address. Again, it is not that he stated nothing on the form. The Form 1 (Petition) is duly completed. In my view, the failure to state the Lot and Section number is not a substantial non-compliance.
    
20. Rule 22 of the Election Petition (Miscellaneous Amendment) Rules 2022, provides relief from compliance of the Rules. It reads:
    

“22. Relief from the Rules

...

(1) The Court may dispense with compliance with any of the requirements of these Rules, either before or after the occasion for compliance arises.

(2) Substantial compliance with any form, including a petition, prescribed by these Rules shall be regarded as sufficient.

(3) No petition or other process provided for by these Rules shall be struck out or dismissed for want or defect of form unless the want or defect is so extensive as to amount to substantial non-compliance or appears to demonstrate a deliberate abuse of process.

(4) Nothing in this rule excuses a failure to comply with a requirement of the Organic Law, however when determining an allegation of failure to comply with a requirement of the Organic Law, the Court shall pay close regard to the requirements of s 217 of the Organic Law.”

21. Rule 22 was included after the Hagahuno decision; especially subrule 4. In my view, the objection raised is technical in nature. There is substantial compliance of the Form 1. After considering all other objections raised in respect of the grounds of petition and if the whole or just one ground survives the objections, it will be competent enough to proceed to trial.
    
    2. Whether the Petition was filed without the filing fee and security deposit within the required forty (40) days rendering it incompetent under sections 208 (e) and 209 of the Organic Law
       
22. The Second Respondent objects to the competency of the petition on the ground that the petition was filed without the filing fee and security deposit rendering it incompetent under section 208(e) of the Organic Law, and Rules 5, 6 and 7 of the Election Petition (Miscellaneous Amendment) Rules 2022. Counsel for the Second Respondent argues that the notice of payment of the filing fee and security deposit were paid on 16^th September 2022, which is two (2) days outside of the 40^th day. He relies on the recent decision of Wesley Raminai v Maino Pano & the Electoral Commission of Papua New Guinea (2023) N10248 where the Court held that the effective date of filing is the date when the matter is lodged, sealed, and endorsed with an EP number and not when it is uploaded in the IECMS. Mr. Bigi, counsel for the First Defendant, supports the Second Respondent.
    
23. Mr. Kaima, counsel for the Petitioner, submits that the petition, together with the filing fee, and the security deposit were filed on the same day, 14^th September 2022, within the required mandatory forty (40) days. He relies on his own Affidavit filed 2^nd June 2023, and the Notices of payment filed by the Deputy Registrar, Baka Bina, on 16^th September 2022.
    
24. Rule 1 of the Election Petition Rules provides the word “filed” means lodged in a registry of the National Court at Waigani or at a registry or sub-registry of the National Court in a province, as set out in Schule 1, and sealed with the seal of the Court and endorsed with an election petition number. Pursuant to section 209 of the Organic Law and Rules 5,6 and 7 of the Election Petition Rules, the petition must be filed together with the filing fee and the security deposit.
    
25. This position has been the expounded and applied in the case Epi v Farapo (1983) SC243 and later in Paru Aihi v Peter Isoaimo (2015) SC1598, where the Supreme Court endorsed the decision of the National Court which held that:
    

“...The act of filing occurs at the time the petition is presented at the Registry, received by the Election Petition Registry staff and placed in the file. It should also be noted that the Court maintains a physical file and when the petition is presented for filing, it is placed in the file. A date is written on the petition to indicate when it was filed. The date of filing is the date the petition is received. It is also at this time that the security for costs must be paid. In other words, the filing of the petition and payment of security for costs must occur at the same time and I do not think s. 209 (supra) and Rule 5 (supra) envisaged that they occur at different times. “

26. Turning to the present case, the election results for Abau Open was declared on 5^th August 2022. The 40^th day from date of declaration is 14^th September 2022. There is no dispute that the petition was filed on 14^th September 2022. The petition was uploaded on the IECMS on the same day. The Court file shows the original deposit slip and receipt for the filing fee and the security deposit were lodged with the National Registry on 14^th September 2022. There is an endorsement done by the registry staff with the date 14^th September 2022, initialled by Bb. This is confirmed by Notice of Payment, filed by Baka Bina, the Deputy Registrar.
    
27. Mr. Baka Bina certifies in the Notice of Payment of Filing Fee, Document No. 3, that the filing fee of K1,000.00 was paid to the Finance Cash office, and copy of the receipt bearing No. R0001436573 was presented to him on 14^th September 2022, being the date, the petition was filed. The Notice of Payment was uploaded on the IECMS on 16^th September 2022.
    
28. Mr. Baka Bina certifies further in Notice of Payment of Security Deposit, Document No. 4, filed on 16^th September 2022, that the Security Deposit of K5,000.00 was paid into the National Court Registrar’s Trust Account No. 1000583618 at BSP on 14^th September 2022, and the copy of the receipt was presented to him on 14^th September 2022, being the date, the petition was filed.
    
29. The lodgement of the receipt of the filing fee and security deposit slip were further confirmed by Mr. Kaima in his Affidavit sworn 2^nd June 2023. Mr. Kaima deposes that he attended on the National Registry at Waigani personally and filed the Petition together with the deposit slip for the Security Deposit of K 5,000.00 and the receipt for payment of the filing fee of K 1,000.00 on 14^th September 2022.
    
30. The contention by the second Respondent that the filing fee and the security deposit were filed on 16^th September 2022 when the Notices of payments were sealed and uploaded onto the IECMS is a misconception. The documents evidencing the payments were lodged and filed on 14^th September 2022. The Notices of payment were subsequently signed and sealed and uploaded onto the IECMS by the Deputy Registrar two days later.
    
31. At this juncture it is instructive to note that a petition can be filed by physical lodgement of the petition together with the filing fees and security deposit at the National Court at Waigani or at a registry or sub-registry of the National Court in a province or by uploading same through the IECMS. The Election Petition Rules and the National Court Rules for that matter, make no provision for filing through the IECMS at present. Where documents are uploaded onto the IECMS, it is expected that it will take awhile for the vetting, checking, downloading, sealing, and numbering of the documents before they are uploaded again onto the IECMS. In such circumstances, the date of filing should be fixed to the date and time when the document is first uploaded onto the IECMS and not the date when the Registry staff uploads the document after sealing to be consistent with the definition of the word “filed” in Rule 1 of the Election Petition Rules.
    
32. Turning to the present case, I find there is overwhelming evidence that the filing fee and the security deposit were filed at the main National Court Registry at Waigani together with the petition on the same day, 14^th September 2022. The Petitioner has complied with the mandatory requirements of sections 208(e) and 209 of the Organic Law and Rules 5, 6 and 7 of the Election Petition Rules.
    
    3. Whether the petition pleads material facts meeting the requirements of section 208 (a) of the OLNLLGE.
       
33. I will now turn to consider whether the grounds of petition plead relevant and material facts as required by section 208 (a).
    

1. Acts of Bribery
   

34. The Petition pleads six (6) grounds of bribery. They are set out in paragraphs 21 – 22 (grounds 1 to VI). The facts pleaded are to be read and applied in conjunction with the facts in Part B of the Petition. I have reproduced the grounds below for ease of reference.
    

“21. The following facts set out the offence of Bribery under section 103(a)(i) of the Criminal Code Ch 262, as provided for under section 215(1) of the Organic Law.

1. Ground 1 – Ward 5, Kupiano, Aroma Local-Level Government
   

21. On Friday 10^th June 2022, at around 4.00pm at Kupiano Market in Kupiano Town in the Electorate, the First Respondent gave cash to the value of K15,000.00 to Lenke Mamata, Gabriel Vilaila, Saini Memeta, Vitalis Mares and Desmond Memeta, an elector, with the intent to induce and/or cause the elector to cast his preference vote for the First Respondent.
    

Desmond Memeta did cast his vote on 04^th July 2022.

22. The following facts set out the offence of Bribery under section 103(a)(i) of the Criminal Code Ch 262, as provided for under section 215(3)(a) of the Organic Law.
    

2. Ground 2 – Ward 5, Kupiano, Aroma Local-Level Government
   

On Friday 10^th June 2022 at around 4.00pm at Kupiano Market, Lenke Mamata, with the knowledge and/or authority of the First Respondent, gave cash to the value or K30.00 and a twelve pack of South Pacific Green Lager cans of beer to the value of approximately K150.00 to Gare Boi, an elector, with the intent to induce the elector to cast his votes for the First Respondent at the Elections.

Gare Boi did cast his vote on 4^th July 2022.

3. Ground 3 – Ward 9, Upulima, Aroma Local-Level Government
   

On Saturday 11^th June 2022 at 9.00am at the SPV Limited yard along Magi Highway between Imila Village and Upulima Station, Desmond Memeta and Gabriel Vilaila, with the knowledge and/or authority of the First Respondent, purchased seven (7) packets of biscuits, seven (7) soft drinks, and cigarettes and betelnuts to the value of 50.00 for Sabila Haono, an elector, and uttered the words to him that the cash to buy the goods came from the K15,000.00 cash the First Respondent gave them on Friday 10^th June 2022 at Kupiano Market, words to cause the elector to cast his votes for the First Respondent at the Elections.

Sabila Haono did cast his vote on 4^th July 2022.

4. Ground 4 – Ward 9, Upulima, Aroma Local-Level Government
   

On 10^th June 2022 at around 12pm at Upulima Station, Saku Andrew, with the knowledge and/or authority of the First Respondent, gave cash to the value of K50.00 to Wari Aura, an elector, with the intent to induce the elector to cast his votes for the First Respondent.

On 12 June 2022 at around 7.00pm at Imila Village, Lenke Mamata, with the knowledge and/or authority of the First Respondent, gave cash to the value of K200.00 to Wari Aura, an elector, with the intent to induce the elector to cast his votes for the First Respondent.

Wari Aura did cast his vote on 5^th July 2022.

5. Ground 5 – Ward 9, Upulima, Aroma Local-Level Government
   

On Monday 27^th June 2022 at around 10.00am at Waiori Rubber Plantation Block near Upulima, Billy Yakusa, an elector, with the knowledge and/or authority of the First Respondent, offered cash to the value of K200.00 to Simeon Raga, an elector, with the intent to induce the elector to cast his preference vote for the First Respondent at the Elections.

Simeon Raga did cast his vote on 4^th July 2022.

6. Ground 6 – Ward 10, Domara Coudy Bay Local-Level Government
   

On 7^th June 2022 at Domara Village between 2.00pm and 3.00pm, the First Respondent gave a mobile phone to the value of about K100.00 to Frank Taima, an elector, with the intent to induce the elector to cast his preference vote for the First Respondent at the Elections.

Frank Taima did cast his vote on 5^th July 2022.’’

Consideration

35. I will deal with the six grounds of bribery together to avoid repetition as the facts pleaded are identical and arguments raised in the objections are likewise similar.
    
36. The Respondents submit that the pleadings lack material and relevant facts like the amount given by the first Respondent to each of the persons named in ground No.1 and the details of the instructions for the purpose of bribing others and the identification of the offence under the Criminal Code Act.
    
37. Counsel for the Petitioner submits the pleadings are sufficient, clearly setting out the facts constituting the elements of bribery under the Criminal Code Act and section 215 of the Organic Law.
    
38. I have considered the pleadings, the objections and submissions of counsel and find the pleadings are sufficient. The facts constituting the grounds for the bribery allegations set out above are to be read in conjunction with the facts pleaded in Part B of the petition, especially paragraphs 11 and 12. The petition clearly sets out details of date and venue of offence, the name of offender, names of electors allegedly bribed, name of candidate and the bribe was expressly stated to induce the electors to vote for the candidate. In respect of grounds 2 to 5 it was expressly stated that the alleged bribery by others was committed with the knowledge and authority of the candidate, the First Respondent. The facts pleaded states the basic elements of the offence under section 103 (a) of the Criminal Code Act for the purposes of section 215 of the Organic Law. It is sufficient in meeting the minimum pleading requirements of section 208 (a) of the Organic Law as promulgated by Hagahuno v Tuke (supra).
    

B. Errors, Omissions, and Illegal Practices

4. Whether the petition pleads sufficient facts to show how the alleged errors and or omissions and illegal practices affected the results of the election for the purposes of sections 215(3) and 218 (1) of the OLNLLGE.
   

7. Ground 7-Failure to maintain Common Roll
   

39. In ground 7, it is pleaded that the Returning officer and the Electoral Commissioner failed to correct, alter, and maintain the Common Roll for the electorate as required by section 62(2) of the Organic Law. As a result, 12,907 electors out of the 42,424 registered voters did not vote.
    
40. The Respondents submit that the pleading is insufficient. It lacks material and relevant facts on the alleged errors and how such errors or omissions would have affected the results. They submit further that section 214 of the Organic Law prohibits the National Court from inquiring into the correctness of the Common Roll. The Petitioner maintains that the ground of petition is sufficiently pleaded and urges the Court to consider the allegations in conjunction with all facts set out in the entire petition and not in isolation.
    
41. The Electoral Commissioner has the Constitutional duty to conduct elections in a fair and transparent manner giving every citizen the right to vote. The petition pleads that the second Respondent failed to carry out his constitutional and statutory duty in maintaining and updating the Common Roll for the electorate. It is alleged that only 28,913 electors voted out of the 42,424 eligible voters resulting in 12,907 electors being denied their right to vote. I note the pleadings lack specific particulars of the voters who did not vote and their reasons for not voting. However, the facts, though brief are sufficient. If evidence is brought which proves that 12,907 eligible voters were denied voting due to a failure by the second Respondent and its electoral officers in maintaining and updating a relevant Roll of Electors, it is arguable that the results of the elections would have been affected given that the absolute majority is 8,915 and the number of the affected electors will have exceeded the absolute majority by 3,992.
    
42. Whilst the Respondent’s contention that the National Court lacks jurisdiction in inquiring into the correctness of the Roll under section 214 of the Organic Law is arguable, the real issue raised by the ground of petition is one of neglect of duty to update and maintain a Common Roll that is relevant for the electorate.
    

In the circumstances, I find there are sufficient facts pleaded for this ground for the purposes section 208(a) of the Organic Law and therefore shall proceed to trial.

8. Ground 8
   

43. Ground 8 contains allegations that the Second Respondent and its electoral officers failed to observe and adhere to the polling schedule and conducted elections breaching its statutory duties under sections 115 and 130 of the Organic Law. It is pleaded that the second Respondent published two polling schedules which confused the electors. It is pleaded that the venues, dates, and time for polling were altered in circumstances giving little or no opportunity for the electors to cast their votes. It is pleaded it affected the electors from Ward 9 Upulima, Ward 10 Ganai, Doma, Bam and Daravaoio, and Ward 1, Boru and Ward 10 Kelerakwa. The pleadings, however, lack facts with particularity. The Petition states the about 1,586 electors from the Wards at Upulima – Ward 9, Doma, Bam and Daravaoio villages were affected or missed out on voting, due to the change of venue and date of polling. Apart from these wards no details were given for electors in the other wards who were denied or missed out on voting.
    
44. The purpose of setting out the material and relevant facts is to let the opposing party know of the facts and issues involved so he can prepare and defend the case. Refer: Barry Holloway v Aita Ivarato and Electoral Commission (1988 – 89) PNGLR 99 and Hagahuno v Tuke (supra).
    
45. Section 218(1) of the Organic Law provides that an election shall not be avoided on account of an error or an omission by an officer which did not affect the result of the election. Apart from pleading breaches of any statutory duty, the Petitioner must also show how the alleged errors or omissions affected the election results. In this case, the absolute majority required at the time of declaration was 8,915. The pleading fails to demonstrate how the election results are affected. Besides it is arguable that under section 117 of the Organic Law, an election is not open to challenge on the ground of failure to observe a polling schedule or a variation or departure from a polling schedule. For these reasons, this ground is liable to be struck out for being incompetent.
    

9. Ground 9
   

46. Ground 9 contains allegations that the Presiding Officer at Baramata No. 4 did not use Book 1 and 4 containing ballot papers and did not sign the back of the first five (5) ballot papers, thereby committing electoral offences under sections 191(14) and 199 of the Organic Law. Apart from this brief allegation, no other facts are pleaded.
    
47. Section 215(3) provides that the National Court shall not declare an election void on account of an illegal practice committed by a person other than the Candidate unless the Court is satisfied that the result of the election was likely to be affected. The act or omission complained is equally a neglect of duty. Section 218(1) of the Organic Law provides that an election shall not be avoided on account of an error or an omission by an officer which did not affect the result of the election. There are no facts pleaded to show how the election results are affected by the alleged illegal practice and or errors or omissions committed by the named Presiding Officer. This ground is liable to be struck out for being incompetent.
    

10. Ground 10
    

48. This ground pleads the First Respondent committed an illegal practice under section 178(1)(c) and (d) of the Organic Law and section 105(1)(d) of the Criminal Code Act by distributing election posters on 29^th June 2022, at Viriolo and Kapari villages in the Aroma LLG area which posters depicted the First Respondent’s picture and polices for the 2017 National Elections for the duration of the elections to mislead the electors in relation to the casting of their votes.
    
49. Firstly, the pleading is not clear whether the alleged illegal practice was committed by the first Respondent personally or by others with his knowledge and authority. If it is done by others, no details like names were stated. Again, Section 215(3) of the Organic Law provides the National Court shall not declare an election void on account of an illegal practice, other than bribery and undue influence, committed by the Candidate or by another person with his knowledge or authority unless the Court is satisfied that the result of the election was likely to be affected. There are no facts pleaded to show how the election result was affected by the alleged illegal practice. This ground is incompetent and shall be struck out.
    

XI Ground 11

50. Ground 11 contains allegations of failure by the Returning Officer to conduct proper and transparent scrutiny at the Counting Centre contrary to sections 147 to 151 of the Organic Law. The complaints are enumerated in subparagraphs (i) to (x). The complaints include late counting, limited allowance for scrutineers into counting rooms, lack of disclosure and reconciliation of serial numbers of ballot papers and failure to answer queries raised by scrutineers during counting.
    
51. The pleadings are too brief and lack particularity. They are general assertions without any material or relevant facts constituting any breach of the statutory duties. In particular, the pleadings do not show how sections 147 – 151 were breached by the electoral officers. Section 218(1) of the Organic Law provides that an election shall not be avoided on account of an error or an omission by an officer which did not affect the result of the election. Apart from pleading the breach of any statutory duty, the petitioner must show how such errors or omissions have affected the election results. Apart from queries raised in respect of 20 ballot papers, there is no pleading as to how the election results are affected. This ground is liable to be struck out for being incompetent.
    

Reliefs

52. The Second Respondent submits that the Petitioner failed to state the appropriate relief as required by sections 208(b) and 212 of the Organic Law. This objection is misconceived. The petition sets out twelve (12) reliefs, correctly invoking the jurisdiction of the Court under sections 208 (b) and 212 of the Organic Law. If the Petition is successful, it will be granted any one of the reliefs sought, or any other relief as the- Court in its discretion thinks just and sufficient.
    

Conclusion

53. In the end I find the Bribery allegations in Grounds 1 to 6 are clearly pleaded and are competent. I also find Ground 7 competent to proceed to trial. As for Grounds 8 to 11, they fail the competency test. They lack particulars and fail to show how the election results are affected. They are liable to be struck out. As Grounds 1 to 7 survived the competency test, this petition shall proceed to trial.
    
54. I am mindful of the objections taken in respect of the alleged failure by the second attesting witness to state his occupation and address. As I have stated there is substantial compliance and the objections are technical in nature. Although there is no excuse for any failure to meet the requirements of the Organic Law, the alleged failures have not prejudiced the Respondents from defending the grounds of the petition.
    
55. Rule 4 of the Election Petition Rules allows for the Court to pay close regard to the requirements of section 217 of the Organic Law, when determining an allegation of failure to comply with a requirement of the Organic Law. Section 217 provides that the Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities. The recent Supreme Court decision in Hagahuno has given due prominence to the application of section 217 of the Organic Law to give fair, large, and liberal approach in determining issues of compliance. I will therefore, in the exercise of my discretion, as provided for by the Organic Law and the Election Petition Rules, allow the petition to proceed to trial on the grounds that I have found competent.
    

Costs

56. Cost is discretionary. The Respondents succeeded only in part. There shall be no order for cost for the application but will remain cost in the cause.
    

Orders

57. The Court orders that:

1. Grounds 8, 9, 10, and 11 of the Petition are struck out for being incompetent.
   
2. Grounds 1, 2, 3, 4, 5, 6 and 7 shall proceed to trial.
   
3. Cost of the applications shall be cost in the cause.
   
4. Time be abridged.

_______________________________________________________________
Stratserv Legal: Lawyers for the Petitioner
Henaos Lawyers: Lawyers for the First Respondent
Adam Ninkama Lawyers: Lawyers for the Second Respondent