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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO 48 OF 2022
IN THE MATTER OF A DISPUTED RETURN FOR THE
MILNE BAY PROVINCIAL ELECTORATE
TIM NEVILLE
Petitioner
V
GORDON WESLEY
First Respondent
ELECTORAL COMMISSION
Second Respondent
Alotau: Cannings J
2023: 3rd, 5th May
ELECTIONS – petitions – objections to competency of petition – Organic Law on National and Local-level Government Elections, s 208 (requisites of petition) – s 208(a): whether petition adequately sets out facts relied on to invalidate election – s 217 (real justice to be observed) – whether s 217 is to be applied when determining objections to competency of petition.
The respondents to an election petition (the successful candidate was first respondent and the Electoral Commission second respondent) objected to competency of the petition, which consisted of three grounds of challenge. Ground 1 (in paragraph C(A) of the petition) alleged errors or omissions by officers of the Electoral Commission in the counting of votes, which affected or were likely to affect the result of the election for the purposes of s 218(1) of the Organic Law on National and Local-level Government Elections. Grounds 2 (paragraph C(B)(1)) and 3 (paragraph C(B)(2)) alleged that the first respondent committed acts of bribery for the purposes of s 215(1) and (3) of the Organic Law. The respondents argued that each of the grounds failed to comply with s 208(a) of the Organic Law in that: ground 1 failed to plead base facts constituting errors or omissions, including failing to name counting officials who allegedly committed errors or omissions; ground 2 does not plead that the person alleged to have bribed a voter acted with the knowledge or authority of the first respondent and does not plead that the result of the election was likely to be affected; ground 3 does not plead that the first respondent was a candidate at the time the alleged bribery happened and pleads that the offence of bribery was committed six months prior to issue of the writ for the election, so it cannot be bribery for the purposes of s 215 of the Organic Law. The respondents also argued that the petition was incompetent as the petitioner had not sought correct relief under s 212(1) of the Organic Law. The respondents claimed the entire petition was incompetent and should be dismissed. The petitioner opposed both objections to competency.
Held:
(1) Section 208(a) of the Organic Law requires that a petition “set out the facts relied on to invalidate the election or return”. The alleged facts must be set out in a sufficiently detailed and comprehensible way that puts the respondents on notice as to the case that must be met and would if proven support the relief sought in the petition. Grounds of a petition that fail to meet those requirements should be struck out; and if no ground of a petition meets those requirements the entire petition should be dismissed.
(2) A ground in a petition will meet those requirements when it identifies the facts alleged to invalidate the election in terms of the Organic Law. It will identify whether illegal practices as specified in s 215 of the Organic Law are relied on or whether errors or omissions of electoral officers in terms of s 218 of the Organic Law are relied on. It will also specify, in terms of the Organic Law, if necessary, how the illegal practices or errors or omissions affected the result of the election and any other matters required by the Organic Law to be proven.
(3) Section 217 of the Organic Law obliges the Court to be guided by the substantial merits and good conscience of a case without regard to legal forms or technicalities, and this obligation applies from the beginning of a case including when the Court is determining an objection to competency.
(4) The respondents’ objection that ground 1 lacked sufficient facts was sustained. This ground was based on suspicion, speculation and innuendo and failed to specify the number of ballot papers affected by the alleged errors or omissions and failed to specify how the alleged irregularities amounted to errors or omissions and how the alleged errors or omissions affected the result of the election. This ground of the petition was struck out.
(5) The respondents’ objection that ground 2 lacked sufficient facts was refused. This ground of the petition adequately pleaded facts that, if proven, would constitute an offence of bribery under s 103 of the Criminal Code committed by a person with the successful candidate’s knowledge, which would potentially enable the court to declare the election of the first respondent void.
(6) The respondents’ objection to ground 3 was sustained as it alleged that the first respondent committed the offence of bribery at a time that he was not a candidate, and under s 215 of the Organic Law an election can only be declared void if the alleged bribery was committed at a time when the person who turns out to be the successful candidate was a candidate.
(7) The petition will proceed to trial on ground 2 only.
Cases Cited
The following cases are cited in the judgment:
Amet v Yama [2010] 2 PNGLR 87
Beseoh v Bao (2003) N2348
Diau v Gubag (2004) SC775
Ebu v Evara [1983] PNGLR 201
Elemi v Pala (2023) N10134
Eoe v Maipakai (2013) N5066
Fairweather v Singirok [2013] 2 PNGLR 95
Hagahuno v Tuke (2020) SC2018
Holloway v Ivarato [1988] PNGLR 99
Isoaimo v Aihi [2012] 2 PNGLR 337
Kamma v Itanu (2007) N3246
Karo v Kidu [1997] PNGLR 28
Kikala v Electoral Commission (2013) SC1295
Kopaol v Embel (2003) SC727
Mune v Agiru (1998) SC590
Saonu v Dadae (2004) SC763
Sauk v Polye [2004] 2 PNGLR 241
Singirok v Fairweather (2014) N5577
Waranaka v Dusava (2009) SC980
Waranaka v Maru (2018) N7346
Yama v Yagama (2012) N4928
Counsel
A W Jerewai, for the Petitioner
L Painap, for the First Respondent
S Kapi, for the Second Respondent
5th May, 2023
1. CANNINGS J: This is a ruling on objections to competency of an election petition. The petition was filed by unsuccessful candidate Tim Neville (the petitioner) disputing the election of first respondent Gordon Wesley as member for Milne Bay Provincial in the 2022 general election. The Electoral Commission is second respondent.
2. The petition contains three grounds of challenge. They are set out in the petition in part C (grounds) as C(A), C(B)(1) and C(B)(2). I refer to them as grounds 1, 2 and 3.
3. Ground 1 alleges errors or omissions by officers of the Electoral Commission in the counting of votes, which affected or were likely to affect the result of the election for the purposes of s 218(1) of the Organic Law on National and Local-level Government Elections. Grounds 2 and 3 allege that the first respondent committed acts of bribery for the purposes of s 215(1) and (3) of the Organic Law on National and Local-level Government Elections. The relief sought by the petitioner includes an order for a recount of ballot papers and a declaration that the election of the first respondent is absolutely void.
4. The second respondent filed its notice of objection to competency on 25 October 2022. The first respondent filed his notice of objection to competency on 16 March 2023, which was well outside the time provided by rule 12 of the Election Petition Rules 2017. However, no issue has been taken with the late filing and the first respondent’s objection has been considered on its merits.
5. The respondents argue that each ground of the petition fails to comply with s 208(a) of the Organic Law in that: ground 1 fails to plead base facts constituting errors or omissions, including failing to name counting officials who allegedly committed errors or omissions; ground 2 does not plead that the person alleged to have bribed a voter acted with the knowledge or authority of the first respondent and does not plead that the result of the election was likely to be affected; ground 3 does not plead that the first respondent was a candidate at the time the alleged bribery happened and pleads that the offence of bribery was committed six months prior to issue of the writ for the election, so it cannot be bribery for the purposes of s 215 of the Organic Law.
6. The respondents also argue that the petition is incompetent as the petitioner has not sought correct relief under s 212(1) of the Organic Law.
7. The respondents claim the entire petition is incompetent and should be dismissed. The petitioner opposes both objections to competency.
METHOD
8. The grounds of objection to the petition in the respondents’ notices of objection overlap to a large extent, so I will deal with both objections together.
9. I will set out each ground of the petition, and then in relation to each ground, address and determine the grounds of objection to it and decide whether, if the objection is sustained, the ground of the petition is struck out.
10. Please note that the petition erroneously named the Electoral Commission as first respondent and the successful candidate, Mr Wesley, as second respondent. This was in breach of rule 3 and form 1 of the Election Petition Rules 2017, which require that the successful candidate be named as first respondent and the Electoral Commission as second respondent. The error was corrected by a pre-trial order of the court, made with the consent of the parties, on 24 March 2023.
GROUND 1: ERRORS AND OMISSIONS AT SCRUTINY OR COUNTING OF VOTES
11. This ground of the petition states:
(A) Errors and omissions at scrutiny or counting of votes
- In the counting/Scrutiny of votes for the Milne Bay Provincial seat in the said elections the First Respondent committed errors and omissions including:
- (a) Inexplicably at the conclusion of the primary count of the total votes for the election, the Provincial Returning Officer, Mr Ivan Maraka, stood down counting Groups 1, 2, 3 and 4 and retained the counting Group 5, which consisted of 5 of his immediate family members and relatives as aforesaid among others, including the assignment of vote tallying record on the tablet to his second son, Manase Maraka and in doing so Mr Maraka as the Provincial Returning Officer dispensed, removed and/or disposed completely of any impartiality either actual or to be seen as such in the counting/scrutiny of the votes in the said elections.
- (b) At the fifteenth exclusion, being the exclusion of the candidate, Jennifer Rudd, a sizable number of ballot papers being distributed from her parcel were found to be for other remaining candidates which had been placed with the second respondent’s ballot papers and were accordingly removed and redistributed appropriately to other candidates.
- (c) Also at the fifteenth exclusion, a sizeable unexhausted and/or unrejected ballot papers were discovered to have made their way into the second respondent’s parcel of ballot papers to be counted, and were noted by the Petitioner’s scrutineers, in particular Ms Maryalice Kaitolele to be retrieved and redistributed to other candidates’ parcels of ballot papers to be counted.
- (d) In the course of the aforesaid mounting discrepancies, provincial candidates including the petitioner and Mr Titus Philemon in the company of the candidate for the Alotau Open seat, Mr Peter Neville, went to the counting centre and demanded the removal of Mr Fabian Mlaseule and his wife Mrs Jemma Mlaseule from counting centre for the said provincial seat on 2 August 2022, and to which demand the Provincial Returning Office complied.
- (e) Throughout the entire period of counting/scrutiny including the primary counting, the Assistant Returning Officer, Ms Anna Dagubi was not present while the Provincial Returning Officer, Mr Maraka was frequently absent, apart from commencing the counting late on numerous occasions. During these absences of Ms Dagubi and Mr Maraka, a man known only as Thomas whole role was not explained and was unclear, would supervise the counting; take complaints or objections and generally preside as if he was the presiding official at the counting/scrutiny.
- (f) Throughout the entire counting/scrutiny in particular the primary counting, the Polling Presiding officers for the polling teams for the said election were not each called in and were not present to verify the ballot boxes their respective teams used in the polling before their contents were sorted out and counted, including the verification of their signatures or initials on the ballot papers used throughout the polling.
- (g) A counting official namely Ms Marjorie Inabi at the start of counting/scrutiny on 17 July 2022 noticed that the signatures or the initials of the ballot papers used for polling for the said elections in all the four open electorates for the Milne Bay Province were either signed or initiated by the same person as appeared on the ballot papers used, when the signatures or initials should be that of the Assistant Returning Officer for each of the open electorates. Ms Inabi raised this discrepancy with Mr Ivan Maraka who instructed her to ignore the discrepancy and continue with the counting of the votes.
- (h) At the conclusion of counting/scrutiny of the votes for the said election, it is verily believed that the Provincial Presiding Officer, Mr Ivan Maraka was unable to balance the total of the entire ballot papers cast in the voting so that the rejected/exhausted ballot papers added to the unrejected and counted ballot papers will equal the total ballot papers used/cast in the concluded polling and counting/scrutiny.
- The errors and omissions as hereinbefore pleaded violated section 218(1) of the Organic Law on National and Local-Level Government Elections which affected the result or were likely to affect the result of the said election which can only be verified and remedied by a recount/scrutiny of the votes.
- The margin of the number of votes between the Second Respondent and the Petitioner being 6,334 votes resulting with the Second Respondent having being declared the winner and the total allowable votes at the 17th exclusion namely Titus Philemon, being 14,006 votes that was distributed between them, indicates that the major discrepancies as pleaded will affect the result of the elections if on the recount these discrepancies are confirmed.
12. In summary, this ground of the petition alleges that there were numerous irregularities in the counting of votes, some of which were corrected but many of which were not, which called into question the fairness and impartiality of the scrutiny and were very likely to have affected the result of the election.
13. The respondents object to this ground of the petition on the ground that it does not comply with s 208(a) of the Organic Law.
14. Section 208 (requisites of petition) states:
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).
15. There are some general principles that apply to this sort of objection to a ground of a petition:
16. Applying those principles to this ground of the petition I note that there are eight alleged errors or omissions:
(a) Inexplicable decision of the provincial returning officer, Ivan Maraka, to stand down count groups 1 to 4 and retain only group 5 (which included five members of his family);
(b) At the 15th exclusion a sizeable number of ballot papers were found to have been incorrectly allocated to the first respondent, before being redistributed appropriately to other candidates;
(c) Also at the 15th exclusion a sizeable number of unexhausted and/or unrejected ballot papers were discovered to have made their way into the first respondent’s parcel of ballot papers to be counted;
(d) In the face of mounting discrepancies, a number of candidates including the petitioner went to the counting centre on 2 August 2022 and demanded the removal of two counting officials and their demand was acceded to by the provincial returning officer;
(e) Throughout the counting period the provincial returning officer was frequently absent and the assistant returning officer was absent, and a man known only as Thomas whose role was not explained and was unclear would supervise the counting;
(f) Throughout the counting period the presiding officers for each polling team were not present and not available to verify ballot papers from each ballot box;
(g) On 17 July 2022 a counting official, Marjorie Inabi, brought to the attention of the provincial returning officer a major discrepancy in signatures on ballot papers for ballot papers for the four Open electorates, but the provincial returning officer instructed her to ignore the discrepancy and continue counting;
(h) At the conclusion of counting the provincial returning unable to balance the total of the entire ballot papers cast in the voting so that the rejected/exhausted ballot papers added to the unrejected and counted ballot papers will equal the total ballot papers used/cast.
17. My immediate comment on each of these alleged errors or omissions is as follows:
(a) Is a vague allegation that does not how explain how what happened was wrong or how it amounted to an error or omission in terms of the Organic Law.
(b) Identifies an error, which was corrected.
(c) Identifies the same sort of error as in (b), which was corrected.
(d) Identifies a concern of candidates as to the involvement of certain persons, which led to a demand being made to the provincial returning officer, which he complied with;
(e) Identifies a concern as to the frequent absence of the provincial returning officer and the prolonged absence of an assistant returning officer and the presence of Thomas who seemed to supervise the counting, but does not how explain how what happened was wrong or how it amounted to an error or omission in terms of the Organic Law.
(f) Identifies a concern as to the absence of presiding officers for each polling team but does not how explain how what happened was wrong or how it amounted to an error or omission in terms of the Organic Law.
(g) Identifies a concern as to an alleged major discrepancy in signatures on ballot papers for the four Open electorates, which was ignored, but does not explain how what happened was wrong or how it amounted to an error or omission in terms of the Organic Law.
(h) Is a vague allegation, apparently based on hearsay, that the provincial returning officer was unable to reconcile the total of the entire ballot papers used.
18. I appreciate the point made by Mr Jerewai, for the petitioner, in submissions, that the court should not be confined to focussing on each allegation in a petition and should consider the combined effect of each allegation; and I understand his submission that the combined effect of these allegations is to cast doubt on the integrity and impartiality of the counting and scrutiny of votes in this election.
19. However, before I consider the combined effect of the alleged errors or omissions I must consider each one on its own, to see whether each allegation carries any weight: is it clear and concise? does it identify an actual error or omission? I find that none of them carry any weight. Each is vague. Each indicates a concern or a source of suspicion that something was wrong. Each falls short of identifying a precise error or omission. The combined effect of eight vague allegations that carry little weight is little more than that: eight vague allegations that carry little weight. There could have been 100 such allegations carrying little weight but when each one is vague it would hardly make the case for the petitioner any stronger.
20. It must be borne in mind that this ground of the petition is based on s 218(1) (immaterial errors not to vitiate elections) of the Organic Law, which states:
... 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.
21. Section 218(1) has two parts. First, the petition must allege that a delay in the declaration of nominations, the polling, declaration of the poll or return of the writ has occurred or there has been an absence or – as is alleged in this case – an error or an omission by an officer. Secondly the petition must allege that the delay, absence, error or omission has affected the result of the election. Injia J as he then was explained this in Beseoh v Bao (2003) N2348:
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.
22. The Supreme Court in Amet v Yama [2010] 2 PNGLR 87 emphasised the importance of pleading both that the result of the election was affected and how it was affected.
23. I find that ground 1 does not meet those requirements. I uphold the objections to this ground of the petition. The alleged facts have not been set out in a sufficiently detailed and comprehensible way to put the respondents on notice as to the case that has to be met and would if proven invalidate the election and support the relief sought in the petition. It does not meet the requirements of s 208(a) of the Organic Law. The defects in this ground of the petition are fundamental and extensive. It cannot be saved by invoking s 217 of the Organic Law.
24. This ground is based on suspicion, speculation and innuendo. It fails to specify the number of ballot papers affected by the alleged errors or omissions and fails to show how the alleged errors or omissions affected the result of the election. This ground of the petition must be struck out.
GROUND 2: BRIBERY COMMITTED ON 23 JUNE 2022
25. This ground of the petition states:
The second respondent is alleged to have committed acts of bribery in contravention of Section 215(1) and (3) of the said Organic Law on two occasions:
26. In summary, this ground of the petition alleges that on 23 June 2022 in Esa’Ala District, one of the first respondent’s election coordinators, Daniel Thomas, gave a registered elector, Rosemary Pulitara, K3,000.00 cash to induce her and others to vote for the first respondent, thereby committing bribery; and this was with the full knowledge of the first respondent, and this means that the first respondent has committed bribery in contravention of ss 215(1) and (3) of the Organic Law.
27. Section 215 (voiding election for illegal practices) states:
(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.
28. The respondents assert that this ground of the petition fails to meet the requirements of s 208(a) of the Organic Law as it:
(a) fails to plead material facts to establish the offence of bribery for the purposes of s 215(1);
(b) fails to plead base facts that Mr Thomas acted with the knowledge and authority of the first respondent;
(c) fails to plead that the illegal practice of bribery would have affected the result of the election;
(d) fails to plead that it would be just that the first respondent be declared not to be duly elected;
(e) incompetently combines allegations under ss 215(1) and 215(3)(a);
(f) fails to specify whether bribery or attempted bribery took place;
(g) is therefore convoluted, vague and confusing; and
(h) fails to dovetail into the relief sought in paragraph D2 of the petition.
29. I deal with these arguments as follows.
30. As to (a) – that the petition fails to plead material facts to establish the offence of bribery – it is necessary to set out the whole of s 103 (bribery) of the Criminal Code, as it is accepted that “bribery” in s 215 of the Organic Law is bribery under the Criminal Code (Kopaol v Embel (2003) SC727, Diau v Gubag (2004) SC775, Waranaka v Dusava (2009) SC980, Amet v Yama [2010] 2 PNGLR 87). Section 103 states:
A person who—
(a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person any property or benefit of any kind—
(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or
(ii) on account of any person acting or joining in a procession during an election; or
(iii) in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or
(b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or
(c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or
(d) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or
(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or
(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or
(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors,
is guilty of a misdemeanour.
Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.
31. Although the petition does not refer to any provision of the Criminal Code, it is probably not necessary, and the respondents do not take issue with it. What is more important in terms of the objections to competency is whether the facts that would constitute an offence of bribery are alleged in the petition. It will be observed that s 103 is a complex provision that creates a multitude of variants of the offence of bribery. Those that would appear most likely to apply in the present cases are found in s 103(a), and in particular s 103(a)(iii), and s 103(d).
32. As explained in Isoaimo v Aihi [2012] 2 PNGLR 337 and Elemi v Pala (2023) N10134, the elements of an offence under s 103(a)(iii) are that the person alleged to have committed the offence:
33. The elements of an offence under s 103(d) are that the person alleged to have committed the offence:
34. I am satisfied that this ground of the petition pleads facts constituting the elements of an offence of bribery under both s 103(a)(iii) and (d) of the Criminal Code. I am further satisfied that if the alleged facts are proven at trial, those facts may amount to commission of an offence of bribery under s 103 of the Criminal Code.
35. As to (b) – fails to plead base facts that Mr Thomas acted with the knowledge and authority of the first respondent – this is not correct. It is alleged in paragraph (e) of the petition that the first respondent had knowledge of Mr Thomas giving the money to Mrs Pulitara.
36. As to (c) – fails to plead that the illegal practice of bribery would have affected the result of the election – this is correct, but it is of no consequence as it was not necessary to plead that bribery affected the result of the election (Fairweather v Singirok [2013] 2 PNGLR 95).
37. As to (d) – fails to plead that it would be just that the first respondent be declared not to be duly elected – this is correct, but it is of no consequence as it was not necessary to plead that. The reasons for it being unnecessary are explained by the Supreme Court in Fairweather v Singirok [2013] 2 PNGLR 95.
38. As to (e) – the combination of allegations under ss 215(1) and 215(3)(a) – I agree that precision in the actual allegations is lacking. This ground of the petition ought to have more clearly pleaded that Daniel Thomas committed bribery with the knowledge and authority of the first respondent and that therefore the election of the first respondent should be declared void under s 215(3)(a) of the Organic Law. It is not clearly pleaded in those terms. However, I reiterate, the facts are pleaded with sufficient clarity for the respondents and the court to understand that that is the petitioner’s case. It is the facts rather than the law that must be clearly pleaded. I am also mindful of s 217 (real justice to be observed) of the Organic Law, which states:
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.
39. The obligation of the Court to be guided by the substantial merits and good conscience of an election petition case without regard to legal forms and technicalities applies from the beginning of an election petition case (including during hearing of objections to competency), throughout the trial, and right to the end. That has not always been accepted to be the law, but definitely is now, due to the recent five-Judge decision of the Supreme Court in Hagahuno v Tuke (2020) SC2018. In Hagahuno the Court endorsed the line of authority saying that the National Court should stop being over-technical and nit-picking over the way in which an election petition is drafted: Sauk v Polye [2004] 2 PNGLR 241, Saonu v Dadae (2004) SC763, Kikala v Electoral Commission (2013) SC1295, Kamma v Itanu (2007) N3246, Yama v Yagama (2012) N4928.
40. Applying the principles arising from s 217 to the respondents’ objections, I consider that the criticism of the drafting of ground 2 is warranted. However it is not a good reason to strike out the ground.
41. As to (f) – fails to specify whether bribery or attempted bribery took place – I think this is another valid criticism of this ground of the petition. But as I ruled with other criticism of the drafting or loose pleading of ground 2, now is not the time for nit-picking. The important thing is that the alleged facts are clear and that those facts if proven would appear to provide the grounds on which the election can be invalidated.
42. As to is (g) – that ground 2 is convoluted, vague and confusing – I disagree. Ground 2 is far from perfect, but it does the job. The factual allegations are clear and the respondents are on notice as to the case they have to meet.
43. As to (h) – fails to dovetail into the relief sought in paragraph D2 of the petition – I understand this argument to be based on the type of bribery alleged by the petitioner (bribery by a person other than the successful candidate with his knowledge), which is based on s 215(3)(a) of the Organic Law. It is argued that this sort of bribery, if proven, can only give rise to the relief provided by s 212(1)(f) of the Organic Law. But that is not the relief sought in the petition. It claims relief under s 212(1)(h) (see paragraph D2 of the petition).
44. Section 212(1) states:
In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—
(a) adjourn; and
(b) compel the attendance of witnesses and the production of documents; and
(c) grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d) order a re-count of ballot-papers in an electorate; and
(e) examine witnesses on oath; and
(f) declare that a person who was returned as elected was not duly elected; and
(g) declare a candidate duly elected who was not returned as elected; and
(h) declare an election absolutely void; and
(i) dismiss or uphold a petition in whole or in part; and
(j) award costs; and
(k) punish contempt of its authority by fine or imprisonment.
45. This is an interesting argument, and I appreciate the logic in it, but I do not think that it provides a good reason to strike out the ground of a petition. It would be nit-picking in the extreme to do so. The important thing is that relief is sought in terms of s 212(1) of the Organic Law. It might turn out to be the wrong relief being pleaded. But does that mean that the court cannot grant the correct relief? I don’t think so. This sort of argument can be raised if and when the court gets to the point where it has to consider relief.
46. I am not persuaded by any of the arguments of the respondents that ground 2 of the petition fails to meet the requirements of s 208(a) of the Organic Law or is otherwise is so defective that it ought to be struck out. This ground of the petition will proceed to trial.
GROUND 3: BRIBERY COMMITTED ON 6 NOVEMBER 2021
47. This ground of the petition states:
Previously, on or about 6 November 2021, the Second Respondent attended the sports grand finals at the Yeluyelua sports field at Duau RLLG, Esa’Ala District where he presented to the executives of the Yeluyelua Sports Association trophies, food comprising of bales of rice and sugar, cartons of tinned fish, and noodles, coffee (3 in 1) as well as presentation of K1, 000.00 in cash. In making those presentations to the said executives including Mr Wesley, Mr Abel Lanso, and Mr Donald Paison, and in the presence of a large crowd who he addressed and said “You all know who I am. You all have heard of or seen all the good things I did for Samarai Murua when I was the member for that District. I am now putting my hands up to contest the Milne Bay Regional seat to be your governor. I am asking for your support to vote me in the coming elections”. One Mr Esron Henry, the ward member for Bihawa ward, Duau RLLG observed and took note of this event. Notwithstanding that this act of bribery was committed before the issue of the writ for the election for the Milne Bay Provincial seat, that act of bribery was clearly committed with the intention to induce the voters to vote for the Second Respondent in the contest for the said seat in the 2022 General Elections, and therefore a breach of Section 215(1) of the Organic Law on National and Local-Level Government Elections.
48. In summary, this ground of the petition alleges that the first respondent on 6 November 2021 in Esa’Ala District, committed the offence of bribery in the form of K1,000.00 cash.
49. The respondents argue that the first respondent was not a candidate at that time as the writ for the election was not issued until April 2022. This is a sound argument. Section 215 of the Organic Law provides grounds for invalidating an election when illegal practices including bribery are committed by or with the knowledge or authority of a candidate. The first respondent might well have committed the criminal offence of bribery on 6 November 2021 but even if that is proven, it cannot invalidate the election. Section 215 does not provide for it, as he was not a candidate at that time.
50. Mr Jerewai, for the petitioner, submitted that that was a restrictive and narrow interpretation of s 215, which should not be condoned by the court. It would allow prospective candidates to subvert the electoral process by engaging in mass bribery on a large scale and they could do so with impunity as long as they stopped doing it before they nominated for the election. I appreciate that argument. It is not entirely meritless. But it does not reflect the law as it stands now. The preponderance of judicial authority supports the respondents’ argument on s 215: see the National Court decisions of Bredmeyer J in Ebu v Evara [1983] PNGLR 201, Cannings J in Singirok v Fairweather (2014) N5577 and Kandakasi J in Waranaka v Maru (2018) N7346 and the opinion of Kandakasi DCJ in the Supreme Court in Hagahuno v Tuke (2020) SC2018.
51. I uphold the objections to this ground of the petition. Ground 3 does not plead any facts that would, if proven, invalidate the election or the return of the first respondent. It does not meet the requirements of s 208(a) of the Organic Law.
52. The defects in this ground of the petition are fundamental and extensive. It cannot be saved by invoking s 217 of the Organic Law. Ground 3 of the petition is struck out.
CONCLUSION
53. The objections to grounds 1 and 3 (described in the petition as grounds C(A) (errors and omissions at scrutiny or counting of votes)) and C(B)(2) (re alleged bribery on 6 November 2021) are sustained. They must be struck out. 54. The objection to ground 2 (described in the petition as ground C(B)(1) (re alleged bribery on 23 June 2022)) is refused. It remains.
55. The question of costs of the hearing of the objections is a matter of discretion. Rule 19(1) of the Election Petition Rules states that the Court “may make such orders as to costs as it deems fit”. I deem it fit that the parties bear their own costs as the objections to competency have not been entirely successful.
ORDER
(1) The respondents’ objections to the competency of the petition in so far as the objections relate to grounds C(A) (errors and omissions at scrutiny or counting of votes) and C(B)(2) (re alleged bribery on 6 November 2021) are sustained and those grounds of the petition are struck out.
(2) The respondents’ objections to the competency of the petition in so far as the objections relate to ground C(B)(1) (re alleged bribery on 23 June 2022) is refused, and that ground of the petition remains.
(3) The parties will bear their own costs of the objections to competency.
(4) The petition shall proceed to trial on the ground of the petition identified in order (2).
Jerewai Lawyers: Lawyers for the Petitioner
Young & Williams Lawyers: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second Respondent
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