Ilaibeni v Morris [2023] PGNC 51; N10154 (8 March 2023)

N10154

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO.44 OF 2022

IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

AND:
IN THE MATTER OF A DISPUTED RETURN FOR THE SEAT OF ALOTAU OPEN ELECTORATE IN THE 2022 GENERAL ELECTION

BETWEEN:
LISIA ILAIBENI
Petitioner

AND:
HON. RICKY MORRIS, MP
First Respondent

AND:
ELECTORAL COMMISSION
Second Respondent

Alotau: David, J
2023: 6^th & 8^th March

ELECTION PETITION – PRACTICE & PROCEDURE – petition disputing election or return – errors or omissions – illegal practice - bribery - objection to competency of petition – six grounds raised – want of form – not pleading the law – want of material and relevant facts - objection on bribery upheld - all grounds on errors or omissions proceed to trial – Constitution, Section 9 - Organic Law on National and Local-level Government Elections, Sections 3, 5, 153A(1)(a), 147-172, 206, 208, 209, 210, 212, 215, 217 and 218 – Criminal Code, Section 103.

Cases Cited:
Bernard Peter Kaku v William Powi (2019) N7729
Dick Mune v Anderson Agiru & Ors (1998) SC590
Delba Biri v Bill Ginbogl Ninkama [1982] PNGLR 342
Ephraim Apelis v Sir Julius Chan (1998) SC573
Francis Essacu Baindu v Joseph Jerry Yopiyopi (2018) N7411
Gordon Wesley v Isi Henry Leonard (2016) SC1477
Holloway v Ivarato [1988] PNGLR 99
Isi Henry Leonard v Gordon Wesley (2014) N5812
Iambakey Palma Okuk v John Nilkare [1983] PNGLR 28
Jim Nomane v Wera Mori (2013) SC1242
Jamie Maxton-Graham v Electoral Commissioner of PNG (2013) N5385
John Boito v Mehrra Mine Kipefa (2018) N7354
Mathias Karani v Yawa Silupa (2003) N2385
Peter Isoaimo v Paru Aihi (2012) N4921
Raymond Agonia v Albert Karo [1992] PNGLR 463
Siaguru v Unagi and the Electoral Commissioner [1987] PNGLR 372
Sai–Sail Beseoh v Yuntivi Bao (2003) N2348
Sir Arnold Amet v Peter Charles Yama (2010) SC1064
Sandy Talita v Peter Ipatas (2016) SC1603
Undialu v Potape (2020) SC1981
William Duma v James Puk (2019) SC1817
William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018

Legislation Cited:

Constitution
Organic Law on National and Local-level Government Elections
Electoral Law (National Elections) Regulation 2007
National Court Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous Amendments) Rules 2022

Treatises cited:

Butterworths’s Word and Phrases Legally Defined Volume 1:A-C
Shorter Oxford English Dictionary on Historical Principles

Counsel:

Allan Baniyamai, for the Petitioner
Laura Painap with Menchie Numi, for the First Respondent
Tony Sua, for the Second Respondent

RULING ON OBJECTION TO COMPETENCY
OF PETITION

8^th March, 2023

1. DAVID, J: INTRODUCTION: The petitioner, Lisia Ilaibeni (the Petitioner") was an unsuccessful candidate for the seat of the Alotau Open Electorate in the Milne Province (the Electorate) during the 2022 National General Election (the Election). Hon. Ricky Morris, the First Respondent (the First Respondent) was the successful candidate for the Electorate. On 1 August 2022, the First Respondent was declared as the winner of the Election with 8,093 votes. The Petitioner polled 7,986 votes. The winning margin between the Petitioner and the First Respondent was 107 votes. The writ bearing the First Respondent’s election was returned to the Governor General on 5 August 2022. The First Respondent was subsequently sworn in as the duly elected Member of Parliament for the Electorate in the National Parliament.

2. On 8 September 2022, the Petitioner filed a petition addressed to the National Court at Waigani disputing the validity of the election or return of the First Respondent as the successful candidate for the Electorate pursuant to s.206 of the Organic Law on National and Local-level Government Elections (the Organic Law). The facts relied on to invalidate the return of the First Respondent are set out at paragraphs B1 to B16 of the Petition. The grounds upon which the Petitioner relies are set out at paragraphs C1.17 to C1.18, paragraphs C2.19 to C2.24, paragraphs C3.25 to C3.29, paragraphs C4.30 to C4.33 and paragraphs C5.34 to C5.40 of the Petition. The Petitioner alleges that the Second Respondent or his servants or agents committed errors and omissions when the scrutiny was commenced prior to the completion of polling in the Electorate particularly at the Daga LLG and during the conduct of the scrutiny to vitiate the election. The relief to which the Petitioner claims to be entitled, amongst others, are; the petition be upheld in its entirety pursuant to s.212(1)(i) of the Organic Law; an order for a recount of ballot papers cast in the Electorate pursuant to s.212(d) of the Organic Law within 21 days of the date of the order; an order in the nature of a declaration that the declaration of the First Respondent by the Returning Officer, Michael Kape on 1 August 2022 that the First Respondent was the duly elected Parliamentary Member for the Electorate is null and void and of no effect; and an order for a by-election for the Electorate to be conducted by the Second Respondent.

3. On 4 October 2022, the First Respondent filed his Notice of Objection to the competency of the petition (the Objection) pursuant to Rule 12 of the National Court Election Petition Rules 2017 consolidated to Election Petition (Miscellaneous Amendment) Rules 2022 (Election Petition Rules). He objects to the competency of the petition on six of the seven grounds pleaded which, apart from the first ground alleging want of form, are all predicated upon alleged non-compliance with s.208(a) of the Organic Law and therefore should be stopped at this juncture from proceeding to a hearing pursuant to s.210 of the Organic Law. At the hearing, the fourth ground of the Objection was amended without objection when the reference to s.215 was deleted and substituted by s.218. The grounds are restated below:

“1. The Petition is not in accordance with the form required by Order 4 of the Election Petition (Miscellaneous Amendment) Rules 2022 (the Rules) which is a requirement under s.208(c) of the Organic Law on National & Local Level Government Elections (“the Organic Law”), and consequently, the Petition is incompetent.

2. Ground C1 of the Petition is incompetent because it does not cite or invoke any provision under the Organic Law to ground facts to support the relief sought by the Petitioner in the Petition contrary to s.208(a) of the Organic Law.
3. Ground C2 of the Petition is incompetent because the invocation of s.218(1) of the Organic Law does not ground any facts to support the jurisdiction of the National Court to grant the relief sought by the Petitioner in the Petition. Section 218(1) of the Organic Law operates to exempt immaterial errors as grounds for relief in a petition. No other jurisdiction is cited to support the Petitioner’s claim for relief contrary to s.208(a) of the Organic Law.
4. Ground C3 of the Petition is incompetent because it does not include any specific pleading of facts required under s.218 of the Organic Law to void the Election contrary to s.208(a) of the Organic Law.
5. Ground C4 of the Petition pleads s.153A(1)(a) and (b) and s.218(1) of the Organic Law, which are irrelevant to grounding the jurisdiction of the National Court to void the Election. No other jurisdiction is pleaded.
6. Ground C5 of the Petition is incompetent because the pleadings of facts required to properly ground an allegation of bribery under s.215(3) of the Organic Law are not specified, particularly, whether the allegation is pleaded under s.215(3)(a) or the allegation is pleaded under s.215(3)(b) contrary to s.208(a) of the Organic Law.”
   
4. The seventh ground of objection is actually not a ground, but a summation of the six grounds.
   
5. In summary, the grounds of objection in the order pleaded in the Objection, are:
   
   1. Want of compliance with Form 1 of the Election Petition Rules;
   2. Failure to plead the law;
   3. Failure to set out relevant and material facts contrary to s.208(a) of the Organic Law;
      4. Failure to set out relevant and material facts contrary to s.208(a) of the Organic Law;
      5. Failure to set out relevant and material facts contrary to s.208(a) of the Organic Law; and
      6. Failure to set out relevant and material facts contrary to s.208(a) of the Organic Law.
         
6. In support of the Objection, the First Respondent relies on and reads the affidavit of Tony Sua sworn and filed on 28 February 2023 (Doc 75). Mr. Sua is the lawyer for the Second Respondent. Objection was raised by Mr. Baniyamai, counsel for the Petitioner, about the use of Mr. Sua’s affidavit at the hearing only after the First Respondent and the Second Respondent had concluded their initial addresses. Upon interjection by Ms. Painap that the objection should have been raised earlier when she placed reliance on the affidavit, Mr. Baniyamai did not seriously pursue his objection any further.
   
7. The Second Respondent did not rely on any affidavit.
   
8. In contesting the Objection, the Petitioner did not rely on any affidavit.
   
9. At the hearing, Mr. Baniyamai informed the Court that the Second Respondent had also filed a Notice of Objection to the competency of the petition belatedly in late February 2023. The Court file shows that the Notice of Objection to competency of the petition was filed by the Second Respondent on 21 February 2023. Mr. Sua for the Second Respondent then tried to seek leave to pursue the objection which he said was grounded on a point of law with an oral application and without referring the Court to any supporting affidavit to explain the delay and for not filing the objection within the time prescribed by Rule 12 of the Election Petition Rules. I refused leave but allowed Mr. Sua to make submissions on the point of law he wished to raise when addressing the Court on the Objection.
   

LAW ON OBJECTIONS TO COMPETENCY OF ELECTION PETITIONS

10. In Jamie Maxton-Graham v Electoral Commissioner of PNG (2013) N5385, I stated the law as I understood it to be at the time as follows:

“12. It is trite law that the question of competency of a petition in itself raises the issue of jurisdiction and this can either be raised by the Court of its own volition or by a respondent as to all or any of the grounds pleaded in the petition and at any stage of the proceedings: see Sir Arnold Amet v Peter Charles Yama (2010) SC1064; Patterson Lowa v Wapula Akipe (1992) PNGLR 399; Chief Collector of Taxes v Bougainville Copper Limited (2007) SC853; Powes Parkop v Wari Vele (No 1) (2007) N3320; Norbert Kubak v Andrew Trawen (2012) N4992, PGNC286; and Peter Charles Yama v Anton Yagama (2012) N4928.

13. It has also been held that a respondent can raise fresh grounds of objections not pleaded in a notice of objection to competency provided a petitioner is given adequate opportunity to respond to the new grounds: Peter Charles Yama v Anton Yagama (supra). It has also been held that a respondent can raise an objection to competency of a petition even where no objection to competency has been filed: Norbert Kubak v Andrew Trawen (supra). Any prejudice caused to the petitioner can be accommodated by an order for costs: Peter Charles Yama v Anton Yagama (supra). It was held in Sir Arnold Amet v Peter Charles Yama (supra) that issues of competency of a petition can also be raised in the Supreme Court in the case of a review even if they were not raised before the National Court.....
    
15. Issues relating to competency of a petition arise because of the requirements under Sections 208, 209 and 210 of the Organic Law.
    
16. The requirements of Sections 208 and 209 of the Organic Law are conditions precedent to instituting proceedings by way of petitions in the National Court because of Section 210 of the Organic Law and the petition must strictly comply with each and every requirement: Delba Biri v Bill Ginbogl Ninkama (1982) PNGLR 342, Holloway v Ivarato (1988) PNGLR 99........
    
19. Section 210 (No proceedings unless requisites complied with) of the Organic Law provides that unless the pre-requisites under Sections 208 and 209 are met, a petition cannot be heard....
    
20. In Delba Biri v Bill Ginbogl Ninkama (supra), the Supreme Court at p.345 said:
    

"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.....

22. A reason behind the need for strict compliance with Section 208 if not the most important or fundamental one in my respectful view was expressed in Delba Biri v Bill Ginbogl Ninkama (supra) at p.345 in the following terms:

"Furthermore, 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."

23. In Ginson Saonu v Bob Dadae (2004) SC763, the Supreme Court said Sections 208 and 209 were the only requisites of a petition and so long as a petitioner complied with them, a petition could proceed to trial.
24. In Delba Biri v Bill Ginbogl Ninkama (supra), the Supreme Court also observed that the Organic Law gave no power to dispense with the mandatory requirements. It held:

"But the method of disputing an election given by s.206 and s.208 of the Organic Law is a right given by statute. The Organic Law gives no power to dispense with any of the requirements. This is a statutory creature and if any such power is given it must be found in the provisions of the applicable legislation (see Mapun Papol v Antony Temo (supra) )."

11. Section 208 of the Organic Law states:

“208. Requisites of petition.
A petition shall—

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

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

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

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

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

12. In respect to an objection raised for a failure to meet the requirement of s.208(a) of the Organic Law, the law only requires a petitioner to plead the material or relevant facts which would indicate or constitute a ground or grounds upon which an election or return might be invalidated, but not the evidence by which it or they might be proved: Siaguru v Unagi and the Electoral Commissioner (1987) PNGLR 372, Holloway v Ivarato (1988) PNGLR 99. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to see with clarity the issues involved: Holloway v Ivarato (1988) PNGLR 99. There is also no requirement under s.208(a) of the Organic Law that a petition should plead the law: Dick Mune v Anderson Agiru & Ors (1998) SC590, Isi Henry Leonard v Gordon Wesley (2014) N5812, Gordon Wesley v Isi Henry Leonard (2016) SC1477.

13. Section 209 of the Organic Law states:

“209. Deposit as security for costs.

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

14. Section 210 of the Organic Law states:

“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.”

15. Section 217 of the Organic Law states:

“217. Real justice to be observed.

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.”

16. The decision of the Supreme Court constituted by a five-member bench (Kandakasi DCJ, Kirriwom J, Mogish J, Manuhu J and Makail, J) in the case of William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018 revisited the strict approach advocated by the Supreme Court decision of Delba Biri v Bill Ninkama [1982] PNGLR 342 in dealing with election petitions and followed by many decisions of the Supreme Court and National Court after that in dealing with election petition cases. The Supreme Court in William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018 said a fair, liberal and purposive approach should be taken in interpreting and applying the provisions of Constitutional Laws of which the Organic Law was one and that s.217 of the Organic Law ought to be considered and applied in that context. The Supreme Court also observed that s.217 applies to all aspects of the National Court proceedings dealing with election petitions including the hearing of objections to competency of petitions.

17. The relevant headnotes summarising these pronouncements in William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018 are set out below:

“(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.”

18. Rule 12 of the Election Petition Rules provides that a respondent who objects to the competency of a petition must file his objection in accordance with Form 4 within twenty one days after service of the petition.

REQUISITES OF FILING PETITION NOT IN DISPUTE

19. There is no dispute as to the question of compliance with the requirements under s.208(b), (c), (d) and (e) (Requisites of Petition) and s.209 (Deposit as Security for costs) of the Organic Law.

20. There is also no dispute about compliance with Rule 12 of the Election Petition Rules as to the filing of the Objection.

CONSIDERATION OF OBJECTIONS

First objection – Want of Form

21. The First Respondent relies on what he states is Order 4 of the Election Petition Rules. There is no such Order. This ground of objection is incompetent in that regard.

22. The correct reference would be to Rule 4 of the Election Petition Rules. This rule requires that a petition must be in accordance with Form 1. No amendment was sought to correct the glitch.

23. Rule 22 (Relief from the Rules) of the Election Petition Rules is relevant here and it states:

“(1) The Court may dispense with compliance with any 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 section 217 of the Organic Law.”

24. The First Respondent has not particularised or pleaded in the Objection how the petition is not in accordance with Form 1. It is a general assertion. In that regard, I am satisfied that there is compliance or substantial compliance with Form 1. The First Respondent has failed to demonstrate in the Objection why the petition should be struck out or dismissed for want or defect of form or that any want or defect is so extensive as to amount to substantial non-compliance or appears to demonstrate a deliberate abuse of process.

25. I note however that in the First Respondent’s written submissions, he submits that the petition is irregular as:

1. The form of the petition contains the following “IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS” which is not provided for by Form 1;
   
2. The petition is addressed to the National Court just above paragraph 1 when it is not clearly provided for by Form 1.
   

26. Section 206 of the Organic Law requires that a petition disputing the validity of an election or return be addressed to the National Court and not otherwise. No form is prescribed either by the Organic Law or the Electoral Law (National Elections) Regulation 2007. It is only the Election Petition Rules that prescribe a form. As I have alluded to earlier, Rule 4 of the Election Petition Rules states that the petition must be in Form 1 which is set out at Schedule 2 of the Election Petition Rules. In the present case, the petition is addressed to the National Court of Justice with its physical address at Waigani, Papua New Guinea at the top left-hand corner of the first page and addressed to the National Court of Justice to its postal address of P O Box 7018 Boroko, National Capital District directly below the heading “Petition” on the first page of the petition and above paragraph A. It was held in Bernard Peter Kaku v William Powi (2019) N7729 that want of form is clearly not a pre-requisite of s.208 of the Organic Law with which I respectfully agree. The Organic Law has primacy over the Election Petition Rules in accordance with the hierarchy of laws established by s.9 of the Constitution: William Duma v James Puk (2019) SC1817. It is in that respect that Rule 4 of the Election Petition Rules is subservient to the Organic Law: William Duma v James Puk (2019) SC1817, Bernard Peter Kaku v William Powi (2019) N7729. I am of the view that neither the First Respondent nor the Second Respondent is prejudiced or materially prejudiced or placed precariously at a disadvantage. I am therefore satisfied that the requirement of s.206 of the Organic Law has been met. Otherwise, there is compliance or substantial compliance with Form 1: see Rule 22(2), (3) and (4) of the Election Petition Rules.

27. The objection is dismissed.

Second Objection - Failure to plead the law to support Ground C1 of the petition

28. A close examination of the second ground of the Objection shows that the objection is grounded on the failure to cite or invoke any provision of the Organic Law for the purposes of meeting the requirement under s.208(a) of the Organic Law. The Petitioner concurs.

29. As I have alluded to earlier, the Supreme Court in Dick Mune v Anderson Agiru & Ors (1998) SC590 held that there is no requirement in s.208 (a) of the Organic Law that a petition should plead the law. In that case, Wood J observed as follows:

“The fact that the petitioner may not have exactly referred to the section of the law which he may avail himself of is not a material fact. That is to be a conclusion of law which the judge would consider at the close of all the evidence. There is no requirement for a petitioner to plead the law, actually any requirement to strictly plead the law would be contrary to the overall intention of the Organic Law which through the implications of section 222 was to enable petitioners in person to file and argue petitions in the court without having to use lawyers.”

30. Injia J observed as follows:

“I also agree with Woods, J that there is no requirement in s 208(a) that a petition should plead the law or relevant statutory provision which defines that ground.”

31. Injia J however went on to state that in appropriate cases, it might be necessary to plead the relevant statutory provision relied on. His Honour stated as follows:

“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...”

32. In Jim Nomane v Wera Mori (2013) SC1242 at [49] and [51], the Supreme Court said a stricter approach to pleading was the law as advocated in Sir Arnold Amet v Peter Charles Yama (2010) SC1064, ie, it was incumbent upon a petitioner to identify the relevant statutory provision relied upon.

33. In Gordon Wesley v Isi Henry Leonard (2016) SC1477, the Supreme Court affirmed that Dick Mune v Anderson Agiru & Ors (1998) SC590 sets out the correct law about the question of whether s.208(a) of the Organic Law requires pleading of the law when it held at [6] as follows:

“The requirement under Section 208(a) is that a petition shall set out the facts relied on to invalidate the election or return. In our view Agiru v Mune (1998) SC 590, sets out the correct law on this point which is that there is no requirement under Section 208(a) that a petition should plead the law that defines a ground for review. Biri v Ninkama (1982) PNGLR 342 stands for the proposition that in a petition relevant fact must be pleaded which constitute the grounds upon which an election is sought to be invalidated. In this case the learned trial judge comprehensively considered the law and case authorities and in our view applied them correctly to the circumstances of this case. In our view, a petition should not plead the law breached. It should be left to the Court to conclude what law has been breached. All that Section 208(a) requires is for the petition to plead material and relevant facts to support the grounds that the petition alleges. This ground has no merit and is dismissed.”

34. I will follow the approach in Dick Mune v Anderson Agiru & Ors (1998) SC590 and approved and applied in Isi Henry Leonard v Gordon Wesley (2014) N5812, Gordon Wesley v Isi Henry Leonard (2016) SC1477.

35. Mr. Baniyamai for the Petitioner correctly contends that there is no requirement under s.208(a) of the Organic Law to plead the law as the provision only refers to pleading of facts.

36. It is on this basis that I will dismiss the objection.

37. In case, I am wrong in arriving at the above conclusion (which I think I am not), I will make these additional observations.

38. The First Respondent submits through Ms. Painap of counsel that the objection under consideration actually is in two parts; one part being on pleading the law which I have already addressed; and the other part was that the Petitioner has failed to plead material and relevant facts to support Ground C1 of the petition.

39. The Second Respondent essentially supports the objection and the First Respondent’s submissions.

40. Section 218 (Immaterial errors not to vitiate election) of the Organic Law is a relevant provision that must be considered in relation to the Petitioner's allegations of errors or omissions committed by the First Respondent or his servants or agents. Only sub-section 1 is relevant for the present purposes and it states:

"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."

41. As was stated by the Supreme Court in Ephraim Apelis v Sir Julius Chan (1998) SC573, this provision is concerned with errors of election officials dealing with the process of election commencing with the nominations, polling, the declaration of poll or the return of writ.

42 In Sai–Sail Beseoh v Yuntivi Bao (2003) N2348, Injia, J made the following observations about s.218(1):

"Section 218(1) has two parts. First, the delay, error or omission of electoral officers must be clearly pleaded and second, the petition must demonstrate clearly how that delay, error or omission did affect the result of the election. Mere pleading of the delay in the polling and errors or omissions will not suffice. Likewise, mere pleading that the result was affected will not suffice."

43. The pleadings in the petition therefore must set out the material and relevant facts to demonstrate clearly the following;

1. The error or omission;

2. The error or omission was committed or made by an electoral officer; and

3. The error or omission did affect the result of the election.

44. These three criteria of pleading was applied by Sawong, J in Mathias Karani v Yawa Silupa (2003) N2385 and approved and adopted by the Supreme Court in Undialu v Potape (2020) SC1981.

45. What is the alleged error or omission that the Petitioner has complained about? The complaint is that scrutiny or counting for the Electorate commenced on 18 July 2022 and ended on 20 July 2022 prior to the completion of the polling in the Daga LLG. This is demonstrated in paragraphs C1.17 and C1.18 of the petition.

46. Do the pleadings in the petition identify the electoral officer who is alleged to have committed or made the alleged error or omission? Yes. The allegation is demonstrated at paragraph C1.18 of the petition. The Second Respondent and the Returning Officer, Michael Kape are named. Section 3 of the Organic Law defines the term “electoral officer” and it includes the Electoral Commissioner and a Returning Officer. Section 5(2) of the Organic Law states that the Electoral Commission shall consist of the Electoral Commissioner.

47. Do the pleadings in the petition demonstrate that the error or omission did affect the result of the election? Yes. The allegation is pleaded at paragraph C1.18 of the petition where it is averred that a total of 3,028 persons who cast their votes in the Daga LLG, which was more than the winning margin of 107 votes between the Petitioner and the First Respondent, were likely to have been affected by the publicity pertaining to the counting that was already in progress and showing who were the leading candidates in the contest and this would have influenced their choices.

48. Does the petition set out the material and relevant facts to demonstrate clearly the three criteria of pleading? Yes.

49. The second part of the objection the First Respondent relies on is dismissed.

Third objection – Failure to plead facts to support Ground C2 of the petition

50. The First Respondent essentially submits that Ground C2 of the petition should be dismissed as the electoral officer who is alleged to have committed or made the error or omission or the discrepancy was not identified. Instead, he states that the Petitioner pleaded figures that he took off the Electoral Commission website based on which he pleaded the winning margin.

51. The Second Respondent supports the First Respondent’s objection and his submissions.

52. The Petitioner submits that the objection is misconceived and ought to be dismissed because the facts set out in the petition to support Ground C2 are sufficient.

53. What is the alleged error or omission that the Petitioner has complained about? Ground C2 of the petition alleges marked discrepancies in the figures for the Electorate and the Milne Bay Provincial seat. This is demonstrated in paragraphs C2.19 to C2.24 of the petition. It is alleged that the total number of votes cast for the Electorate, counted in the Milne Bay Provincial seat, the primary count was 34,554 whilst the Electorate’s primary count was 34,939, a difference of 385 votes, and this would have affected the result of the election.

54. Do the pleadings in the petition identify the electoral officer who is alleged to have committed or made the alleged error or omission? Yes. The allegation is demonstrated at paragraph C2.23 of the petition where the Second Respondent and its polling officers are persons identified as committing or making the alleged error or omission. As I have alluded to earlier, s.3 of the Organic Law defines the term “electoral officer” and it includes the Electoral Commissioner and that s.5(2) of the Organic Law states that the Electoral Commission shall consist of the Electoral Commissioner. I have had regard to and applied s.217 of the Organic Law and William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018 in arriving at this conclusion.

55. Do the pleadings in the petition demonstrate that the error or omission did affect the result of the election? Yes. The allegation is pleaded at paragraphs C2.19 to C2.24 of the petition where it is averred that the total number of votes cast for the Electorate counted in the Milne Bay Provincial primary count was 34,554 whilst the Electorate’s primary count was 34,939, a difference of 385 votes, and this would have affected the result of the election.

56. Does the petition set out the material and relevant facts to demonstrate clearly the three criteria of pleading? Yes.

57. The objection is dismissed.

Fourth objection – Failure to plead facts to support Ground C3 of the petition

58. The First Respondent in essence submits that Ground C3 of the petition should be dismissed as there are no base facts pleaded regarding what objections were raised and at what stage the objections were raised and how the electoral officers dealt with such alleged objections during the scrutiny.

59. The Second Respondent supports the First Respondent’s objection and his submissions.

60. The Petitioner submits that the objection is misconceived and ought to be dismissed because the facts set out in the petition to support Ground C3 are sufficient.

61. What is the alleged error or omission that the Petitioner has complained about? Ground C3 of the petition alleges that there was a lack of proper scrutiny. This is demonstrated in paragraphs C3.25 to C3.29 of the petition. It is alleged that the Returning Officer, Michael Kape and his Assistant Returning Officers including Albert Budiara failed to properly conduct the scrutiny resulting in errors and irregularities that affected the result of the election as:

1. The entire process of counting and allocation of votes affected all the figures compiled at the scrutiny and the total votes recorded;
2. The winning margin being the difference of 107 votes was affected in the sense that a total of 34,939 primary votes recorded in the primary count was much higher than the 107 votes.
   

62. Do the pleadings in the petition identify the electoral officer who is alleged to have committed or made the alleged error or omission? Yes. The Returning Officer, Michael Kape and his Assistant Returning Officers including Albert Budiara have been identified. I have had regard to and applied s.217 of the Organic Law and William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018 in arriving at this conclusion.

63. Do the pleadings in the petition demonstrate that the error or omission did affect the result of the election? Yes. The allegation is pleaded at paragraphs C3.25 to C3.29 of the petition. Again, I have had regard to and applied s.217 of the Organic Law and William Hagahuno v Johnson Tuke and Electoral Commission of Papua New Guinea (2020) SC2018 in arriving at this conclusion.

64. Does the petition set out the material and relevant facts to demonstrate clearly the three criteria of pleading? Yes.

65. The objection is dismissed.

Fifth objection – Failure to plead facts to support Ground C4 of the petition

66. The First Respondent in essence submits that Ground C4 of the petition should be dismissed as:

1. The Petitioner has failed to plead the names of scrutineers except for Kodu Yatanusi and electoral officials who were involved in the counting of the Weraura Ballot Box No.47 which was alleged to have been tampered with and the integrity of the ballot papers in it compromised, but not excluded from scrutiny and allegedly affected the result of the election;
2. The Petitioner did not plead any base facts in relation to s.153A(1)(a) of the Organic Law and those required by ss.147 to 172 of the Organic Law.
   

67. Ms. Painap for the First Respondent referred the Court to some passages of John Boito v Mehrra Mine Kipefa (2018) N7354 and urged the Court to consider [64] and [65] where it was observed as follows:

“64. .......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.”
    

68. The Second Respondent supports the First Respondent’s objection and his submissions.

69. The Petitioner submits that the objection is misconceived and ought to be dismissed because the facts set out in the petition to support Ground C4 are sufficient. He states that the petition alleges that the Returning Officer failed to exclude Weraura Ballot Box No.47 from the scrutiny when it was clearly tampered with and with particulars of tampering disclosed in the petition. He also states that there is no requirement to plead the law for purposes of s.208(a) of the Organic Law.

70. Again, I reaffirm, and as correctly contended by the Petitioner, that there is no requirement to plead the law for purposes of s.208(a) of the Organic Law.

71. Having said that, what is the alleged error or omission that the Petitioner has complained about? Ground C4 of the petition alleges that the Returning Officer, Michael Kape failed to exclude Weraura Ballot Box No.47 when he failed to act on the objection by scrutineers including Kodu Yatanusi and admitted the ballot box into scrutiny where the ballot papers were counted. This is demonstrated in paragraphs C4.30 to C4.33 of the petition.

72. Do the pleadings in the petition identify the electoral officer who is alleged to have committed or made the alleged error or omission? Yes. The Returning Officer, Michael Kape is identified as the person who decided to admit Weraura Ballot Box No.47 into scrutiny despite objections from various scrutineers including a Kodu Yatanusi to exclude it from scrutiny.

73. Do the pleadings in the petition demonstrate that the error or omission did affect the result of the election? Yes. The allegation is pleaded at paragraphs C4.32 to C4.33 of the petition where it is alleged that Weraura Ballot Box No.47 contained a total of 487 ballot papers, 469 of which were formal votes and were more than the difference of the 107 votes between the Petitioner and the First Respondent.

74. Does the petition set out the material and relevant facts to demonstrate clearly the three criteria of pleading? Yes. As to the question of whether Weraura Ballot Box No.47 was damaged and its contents, the ballot papers, disturbed and their integrity compromised and should have been excluded from scrutiny, that is a matter for evidence and determination at trial.

75. The objection is dismissed.

Sixth – Failure to plead facts relating to alleged bribery to support Ground C5 of the petition

76. The First Respondent submits that the Petitioner has failed to plead material and relevant facts to support Ground 5 of the petition which relates to alleged bribery by one Berry Logomina, Campaign Coordinator and agent of the First Respondent of Councillor for Sirisiri Ward namely, Gilbert Dodoa with cash in the sum of K500.00 on 19 May 2022 at about 03:30 pm. It is contended that Ground 5 of the petition should be struck out and dismissed as:

1. There is no specific pleading as to whether the alleged act of bribery was committed under s.215(3)(a) or (b);
2. When the act of bribery allegedly occurred on 19 May 2022 at about 03:30 pm, the First Respondent was not a candidate as he nominated on 19 May 2022 at 04:44 pm.
3. All elements of bribery cannot be sustained as a result.
   

77. The Second Respondent supports the First Respondent’s objection and his submissions.

78. The Petitioner submits that the objection is misconceived and ought to be dismissed because the facts set out in the petition to support Ground C5 of the petition are sufficient to warrant a trial.

79. Section 215 of the Organic Law deals with voiding of elections for illegal practices. It 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) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(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.”

80. Are the facts pleaded supporting Ground C5 of the petition sufficient for purposes of s.208(a) of the Organic Law?

81. In Mathias Karani v Yawa Silupa (2003) N2385, Sawong, J stated that in a petition alleging illegal practices as a ground to invalidate an election, it must plead the following material and relevant facts:

1. the illegal practice;

2. the illegal practice was either committed by the successful candidate or committed by another person, but with the successful candidate's knowledge or authority;

3. the result of the election is likely to be affected by the illegal practice;

4. it would be just that the candidate should be declared not duly elected or the election be declared void.

82. The criteria of pleading suggested by Sawong J in Mathias Karani v Yawa Silupa (2003) N2385, was approved and adopted by the Supreme Court in Undialu v Potape (2020) SC1981.

83. In Mathias Karani v Yawa Silupa (2003) N2385, Sawong, J also said that the facts pleaded in a petition in support of an allegation of bribery for the purpose of s.208(a) of the Organic Law should support the constituent elements of the offence of bribery prescribed by s.103 of the Criminal Code.

84. Bribery is an illegal practice under s.215 of the Organic Law: Iambakey Palma Okuk v John Nilkare (1983) PNGLR 28, Sandy Talita v Peter Ipatas (2016) SC1603, Francis Essau Baindu v Joseph Jerry Yopiyopi (2018) N7411.

85. Section 103 of the Criminal Code provides a number of different circumstances that amount to bribery: Raymond Agonia v Albert Karo [1992] PNGLR 463, Peter Isoaimo v Paru Aihi (2012) N4921.

86. In Raymond Agonia v Albert Karo [1992] PNGLR 463 at 469 and 470, Sheehan J observed as follows:

“Without analysing this section exhaustively, it is clearly a section that is designed to prohibit improper inducements to persons, to electors, or candidates in an election. Whether those inducements are made to an elector – defined as any person entitled to vote at any election – or other persons, the corrupt practices aimed at are those inducements offered or sought, with the intention of interfering with the lawful process of an election.

It is also clear that there is in s.103 no general definition of bribery standing apart from the specific instances set out, which does not include an intention to induce a course of action of corrupt practice. It is clear, therefore, that intention is an integral part of the offence. Such phrases as offering gifts, benefits, or inducements on “account of”, or “in order to induce”, or “with the intent that”, are all phrases that show that the purpose of offering the inducement is an element of the offence.....

In the case of bribery, as well as the specifics of the particular allegation, such as names, numbers, dates, place, 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.”

87. In Sir Arnold Amet v Peter Charles Yama (2010) SC1064, the Supreme Court said that it will be helpful too to plead the relevant number of votes secured by the winner and the runner-up when determining whether or not the result of the election was likely to be affected. In that case, the Supreme Court also observed that the pleadings must be clear, concise and in sufficient terms so that the opposing party is properly and adequately informed to defend the alleged improper or illegal conduct.

88. Ms. Painap for the First Respondent in her submissions was at pains to explain what the phrase “at about” pleaded at paragraph 34 of the petition meant. She referred the Court to Butterworths’s Word and Phrases Legally Defined Volume 1:A-C at page 131 which defined the word “at” to mean:

“The word [at] may, in one sense, be read, before, but it cannot be read after.”

89. Ms. Painap also referred the Court to the Shorter Oxford English Dictionary on Historical Principles where it defined the word “at” to mean “close to, to.” In the same dictionary, the word “about” amongst others is defined in connection with time “near, close to.”

90. No other assistance was provided by Mr. Sua or Mr. Baniyamai.

91. As I understand it, the word “at” identifies a specific time while the phrase “about” refers to an approximate time. The combination of the two which is “at about” makes the meaning unclear, but I think it would be safe to say that it means near or close to the time indicated.

92. The only and uncontroverted evidence available before the Court is that of the affidavit of Mr. Sua to which is annexed copies of the Nomination Forms for the Petitioner (annexure TS-01) and the First Respondent (annexure TS-02) respectively. The Petitioner’s Nomination Form shows that his nomination was accepted by the Returning Officer, Michael Kape in Alotau on 19 May 2022 at 03:29 pm. The First Respondent’s Nomination Form shows that his nomination was accepted by the Returning Officer, Michael Kape in Alotau on 19 May 2022 at 04:00 pm (04.44 pm).

93. There is prima facie evidence that the First Respondent was not a candidate on 19 May 2022 “at about“ 03:30 pm as pleaded in the petition. The First Respondent was officially a candidate contesting the 2022 National General Election for the Electorate as of 19 May 2022 at 04:00 pm (04.44 pm). In my view, the time indicated “at about” 03:30 pm was not near or close enough to the time indicated of the First Respondent’s nomination being at 04.00 pm (04.44 pm).

94. I generally accept Ms. Painap’s submissions in connection with the question of the candidacy of the First Respondent. I agree with Ms. Painap that all elements of bribery cannot be sustained as a result.

95. I am satisfied that the issue of when the First Respondent became a candidate to contest the 2022 National General Election for the Electorate falls within the ambit of the objection.

96. In addition, while the objection concerns whether material and relevant facts have been pleaded to demonstrate Ground C5 of the petition, I cannot see the utility of referring the matter to trial on the issue given the evidence available before me already.

97. It is now not necessary to address in detail or any detail the issue of whether there is any specific pleading as to whether the alleged act of bribery was committed under s.215(3)(a) or (b) of the Organic Law.

98. What can be gleaned from s.215(3)(a) and (b) however is that sub-section 3(a) applies to an illegal practice committed by a person other than the successful candidate whereas sub-section 3(b) applies to an illegal practice, other than bribery or undue influence or attempted bribery or undue influence, committed by the successful candidate.

99. The pathway to reaching an outcome desired under s.215 is different or slightly different and this was clarified in Iambakey Palma Okuk v John Nilkare (1983) PNGLR 28 where in headnotes (2) and (3), Andrew J said:

“(2) Section 215(3)(a) is to be read alone. It does not cut down nor is it a proviso to s.215(3)(b). So read, where an unsuccessful candidate commits any illegal practice without the successful candidates knowledge or authority, the election may not be declared void.

(3) Section 215(3) is to be read with s.215(1). So read, where a successful candidate commits bribery or undue influence or attempts either, his election will be declared void, but where the successful candidate commits some other illegal practice the court must under s.215(3)(b) apply the further test of whether the conduct resulted in any likely effect on the result and a further test again of whether it would be just to declare him not duly elected or to declare the election void.”

100. The pleadings to support Ground 5 of the petition clearly show that the allegation of bribery is made under sub-section 3(a).

101. Otherwise, in the circumstances, I will uphold the objection and strike out and dismiss Ground C5 of the petition.

CONCLUSION

102. Four of the five grounds of the petition have survived the scrutiny of the Court with the assistance of the parties. Ground C5 of the petition on bribery has been struck out and dismissed. The petition will now proceed to trial on the surviving grounds C1 to C4 of the petition.

ORDER

103. The formal orders of the Court are:

1. The Notice of Objection to the competency of the petition filed by the First Respondent on 4 October 2022 is partly upheld in respect of Ground C5 of the petition.
2. Ground C5 of the petition is struck out and dismissed.
3. The petition will forthwith proceed to trial to consider and determine Grounds C1 to C4 of the petition.
4. The parties shall bear their own costs of and incidental to the hearing of the Notice of Objection to the competency of the petition filed by the First Respondent on 4 October 2022.
5. Time is abridged.
   

Ruling and orders accordingly.
____________________________________________________________
Baniyamai: Lawyers for Petitioner
Young & Williams: Lawyers for First Respondent
Sua & Sons: Lawyers for Second Respondent