N11118
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO. 75 OF 2022

BETWEEN
EMMANUEL LOMA PAMEA
 Petitioner

AND
MAINA PANO
First Respondent

AND
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
  
WAIGANI: MAKAIL J
28 MARCH, 17 DECEMBER 2024 

ELECTION PETITION – Objection to competency – Grounds of – Petition being filed outside time limit of 40 days – Failure to pay security for cost of K5,000.00 at time of filing of petition – Organic Law on National and Local-level Government Elections – Sections 208(e) & 209 

ELECTION PETITION – Objection to competency – Grounds of – Failure to plead facts – Allegations of illegal practices at polling – Allegations of hijacking of ballot-boxes – Allegations of errors or omissions – Allegation of error in admitting hijacked ballot-boxes to  scrutiny – Allegation of failure to provide adequate security at polling Breach of rights to votes – Constitution – Sections 50 & 126 – Organic Law on National and Local-level Government Elections – Sections 178, 208(a), 215(3) & 218 – Criminal Code – Sections 106, 107, 110(1) & 191(14) 

WORDS & PHRASES – Filed – Definition of filed considered – Construction of – Natural and ordinary meaning – Organic Law on National and Local-level Government Elections – Section 208(e) – National Court Election Petition (Miscellaneous Amendments) Rules – 2022 – Rule 1 

Cases cited

William Hagahuno v Johnson Tuke (2019) SC1776
Wesley Raminai v Maino Pano (2023) N10248
Sasuwo v Tambua (2023) N10544
Petrus Nane Thomas v William Bando & Electoral Commission: EP No 7 of 2022
Nasam v Sungi (2023) N10405
Koiam v Kaupa (2023) N10330
Dominic v Kaupa (2023) N10364
Dola v Alua (2023) N10464
Patrick Basa v Bob Dadae (2013) N4991
Mond Palme v Dr Fabian Pok & Electoral Commission (2018) N7214
Mai Dop v Wake Goi & Electoral Commission: EP No 17 of 2017 (Unreported & Unnumbered Judgment of Batari J dated 26th January 2018)
Charles Kassman v Justin Tkatchenko (2023) N10213 
Wesley Raminai v Maino Pano (2023) SC2423
Paru Aihi v Peter Isoaimo (2015) SC1598
Jean Parkop v Gary Juffa (2023) N10281
Ondokoi v Mul (2023) N10406
Luke Alfred Manase v Don Pomb Polye & Electoral Commission (Unnumbered & Unreported Judgment of Bona J dated 19th January 2024) 
Francis Marus v Hon. Francis Galia Maneke & Electoral Commission (2024) N10665
Epi v Farapo (1983) SC247
Paru Aihi v Peter Isoaimo (2014) N5694 
William Gogl Onglo v Muguwa Dilu & Electoral Commission (2023) N10595
Nupiri v Powi (2023) SC2459
Nasam v Sungi & Electoral Commission (2024) SC2552
Moses Manwau v Allan Bird (2023) N10249
Ibo v Hagahuno (2023) N10322
Kala v Temu (2023) N10364
Kala v Temu (2023) SC2453
Dominic v Kaupa (2023) N10361
Nupiri v Powi (2023) N10398 
Holloway v Ivarato [1988-89] PNGLR 99
Mune v Agiru (1998) SC590
Francis M Potape v Philip Undialo & Electoral Commission (2018) SC1680
Philip Kikala v Electoral Commission (2013) N4960
Embel v Komal (2013) N5153
Philip Undialu v Francis Potape & Electoral Commission (2020) SC1981
Paias Wingti v Kala Rawali, Electoral Commission & Tom Olga (2008) N3286 Samson Malcolm Kuli v James Apaimia & Anton Yagama (2013) N5275

Counsel

Mr I Shepherd for petitioner
Mr A Ninkama for first respondent
Mr P Kuman for second respondent 
 
RULING ON OBJECTION TO COMPETENCY

1.	MAKAIL J: There are two objections to competency for ruling. These are: 

(a)	first respondent's notice of objection to competency filed on 13th March 2024 with leave of Court, and

(b)	second respondent’s notice of objection to competency filed on 11th March 2024 with leave of Court.

2.	In the case of the first objection, the first respondent relies on six instances to show that the petitioner failed to plead facts constituting the grounds of the petition contrary to Section 208(a) of the Organic Law on Elections. These are:

(a)	failure to plead number of votes supporting the grounds of illegal practices under Section 215 of the Organic Law on Elections and errors or omissions under Section 218 of the Organic Law on Elections.

(b)	defective pleadings because the petitioner has lumped together the grounds of illegal practices and errors or omissions under Sections 215 and 218 of the Organic Law on Elections respectively.

(c)	alternative pleadings because the facts support illegal practices under Section 215 of the Organic Law on Elections and on the other hand, errors or omissions under Section 218 of the Organic Law on Elections.  To rely on alternative pleadings or grounds is prohibited under Section 117 of the Organic Law on Elections.

(d)	failure to plead facts in relation to change of polling venues to constitute grounds of illegal practices under Section 215 of the Organic Law on Elections.

(e)	the allegation of 2,897 ballot-papers being wrongly admitted into scrutiny did not affect the result or is unlikely to affect the result of the election because 2,897 ballot-papers is less than the winning margin of 4,550 votes.

(f)	failure to plead facts in relation to the allegation that the servants and agents of the second respondent did not comply with the procedure on objection to ballot-box being admitted to scrutiny under Section 153A of the Organic Law on Elections.

3.	For the second respondent’s objection to competency, it relies on two grounds.  These are:

(a)	the petition was filed 6 days after the time limitation of 40 days had expired contrary to Section 208(e) of the Organic Law on National and Local Level Government Elections (“Organic Law on Elections”), and

(b)	the petition with notice of payment of filing fee and notice of payment of security deposit were filed 6 days after the time limitation of 40 days had expired contrary to Section 208(e) and Section 209 of the Organic Law on Elections.

4.	I have heard counsel, read their respective submissions including the affidavits Nicholle Botas, Baka Bina, Kini Mamis, Christine Copland and the petitioner, and case authorities for and against the objections and give my reasons as follows:

Petition being filed outside the time limit of 40 days

5.	The law in Section 208(e) of the Organic Law on Elections is that a petition:
	
“shall 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).”

6.	In addition, Rule 1 of the National Court Election Petition (Miscellaneous Amendments) Rules, 2022 (“EP Rules”) defines the word “filed” as:

“….lodged in a registry of the National Court at Waigani or at a registry or sub-registry of the National Court in a province…..and sealed with the seal of the Court and endorsed with an election petition number.”

7.	Furthermore, Rule 5 of the EP Rules provides:

	“5.	Filing

A petition shall be filed together with the official receipt or stamped bank deposit slip evidence of payment of the filing fee and of the security deposit.”	

8.	And Rule 6(2) of the EP Rules provides:

“6.	Filing fees

(1)	……...

(2)	The fee shall be paid at a provincial finance office and the official receipt of the payment shall be filed in the Registry with the petition in accordance with Rule 5.
(3)	…….”	

9.	It is common ground that in computing when 40 days commences, it commences from the day after the date of declaration of result of the election: see also William Hagahuno v Johnson Tuke (2019) SC1776.  

10.	It is also common ground that:

•	on 6th August 2022 the first respondent was declared member-elect for Kagua-Erave Open electorate.

•	on 7th August 2022 the time limitation of 40 days commenced and expired on 15th September 2022.

•	the petition indicated that it was filed on 13th September 2022.

•	the notice of petition was endorsed by the Registry on 16th September 2022.

•	the filing fee was paid to the Department of Finance on 29th August 2022. 

•	the payment of the filing fee was certified by the Registry through the notice of payment of filing fee on 16th September 2022.

•	the security deposit was paid to the National Court Registrar’s Trust Account held with Bank South Pacific Limited (“BSP Bank”) on 30th August 2022.  Copy of BSP Bank Deposit Slip butt and a printout of the deposit transaction were produced.

•	the payment was certified by the Registry through the notice of payment of security deposit on 16th September 2022.  

11.	Further, it is common ground that the Integrated Electronic Case Management System (“IECMS”) Filing Track record shows that:    

•	on 13th September 2022 an electronic file was created on IECMS.

•	an unsealed copy of the petition with filing fee of K1,000.00 and security deposit of K5,000.00 were uploaded on the IECMS on 14th September 2022 at 11:42 pm.

•	a sealed copy of the petition was uploaded on the IECMS on 21st September 2022 at 6:12 pm.

•	a sealed copy of notice of petition was uploaded on the IECMS on 21st September 2022 at 6:13 pm.

•	a sealed copy of the notice of payment of filing fee was uploaded on the IECMS on 21st September 2022 at 6:13 pm.

•	a sealed copy of the notice of payment of security depots was uploaded on the IECMS on 21st September 2022 at 6:14 pm.

12.	Based on the interpretation given by each party and past National Court and Supreme Court judgments on the meaning of the word “filed” in Section 209 it is also common ground that there are two differing views proffered by the parties.

13.	One view is that when a petition is lodged at the National Court Registry at Waigani, the filing of the petition is incomplete until it is stamped with the seal of the National Court and endorsed or allocated an election petition number.  In the case filing using IECMS, the petition must be lodged by uploading it on IECMS, stamped, and endorsed or allocated an election petition number before the expiry of 40 days to constitute filing.  This view is reinforced by the National Court cases in Wesley Raminai v Maino Pano (2023) N10248, Sasuwo v Tambua (2023) N10544,  Petrus Nane Thomas v William Bando & Electoral Commission: EP No 7 of 2022, Nasam v Sungi (2023) N10405, Koiam v Kaupa (2023) N10330, Dominic v Kaupa (2023) N10364, Dola v Alua (2023) N10464, Patrick Basa v Bob Dadae (2013) N4991, Mond Palme v Dr Fabian Pok & Electoral Commission (2018) N7214 and Mai Dop v Wake Goi & Electoral Commission: EP No 17 of 2017 (Unreported & Unnumbered Judgment of Batari J dated 26th January 2018), Charles Kassman v Justin Tkatchenko & Electoral Commission (2023) N10213 and Wesley Raminai v Maino Pano (2023) SC2423, a ruling by a single judge of the Supreme Court refusing leave to review a decision of the National Court in holding that the petition was filed outside 40 days.

14.	In the present case, the filing of the petition did not occur on 15th September 2022 but 21st September 2022.  By then the time limitation of 40 days expired on 16th September 2022.  The result, the petition was filed 4 days after the time limitation of 40 days had expired.

15.	The other view is that the lodgement of the petition at the National Court Registry constitutes filing of the petition.  This was the view expressed by the Supreme Court in Paru Aihi v Peter Isoaimo (2015) SC1598. In the case of lodgement using IECMS, where a petition is uploaded on IECMS or lodged electronically within 40 days, it constitutes filing.  This view is reinforced by the National Court judgments in Jean Parkop v. Gary Juffa (2023) N10281, Ondokoi v. Mul (2023) N10406, Luke Alfred Manase v Don Pomb Polye & Electoral Commission (Unnumbered & Unreported Judgment of Bona J dated 19th January 2024) and Francis Marus v Hon. Francis Galia Maneke & Electoral Commission (2024) N10665.  

16.	In the present case the petition was lodged by uploading it on the IECMS on 14th September 2022 and that constitutes filing.

Definition of “Filed”

17.	I prefer the latter view because it is consistent with the plain meaning of the word “filing” in the Oxford Advanced Learner’s Dictionary 8th edition 2010 Oxford University Press, Oxford at page 572.  It means “the act of putting documents, letters etc, into a file” or “something that is placed in an official record”.  The verb “file” means “to put documents, etc, in a particular place and in a particular order so that you can find them easily; to put a document into a file; to present something so that it can be officially recorded and dealt with.”

18.	The Supreme Court judgments in Epi v Farapo (1983) SC247 and Paru Aihi v. Peter Isoaimo (2015) SC1598 were decided in the context of payment of security for costs under Section 209 of the Organic Law on Elections but are useful guide to define the word “file” or “filing”.  In Paru Aihi v Peter Isoaimo (supra) the Supreme Court cited with approval a passage at [18] of the National Court judgment in Paru Aihi v Peter Isoaimo (2014) N5694 which adopted the plain and ordinary meaning of the word “filed”.  Another National Court case which was decided under Section 209 of the Organic Law on Elections is there was never a time the word “filed” under Section 209 of the Organic Law on Elections is William Gogl Onglo v Muguwa Dilu & Electoral Commission (2023) N10595.

19.	In my respectful opinion, adopting the latter view places a duty on the petitioner to lodge by hand delivery a copy of the petition to the National Court Registry.   Beyond that point, the petitioner is under no obligation to have the petition “sealed with the seal of the Court and endorsed with an election petition number” under Rule 1 of the EP Rules. That obligation is placed on the Registrar and staff of the National Court Registry to discharge.

20.	Similarly, adopting the latter view in the case of filing using IECMS, where a petition is uploaded on the IECMS it constitutes filing.  Beyond that, the petitioner is under no obligation to have the petition “sealed with the seal of the Court and endorsed with an election petition number” under Rule 1 of the EP Rules.  That obligation is entrusted on the Registrar and the staff of the Registry to discharge.

21.	Adopting the latter view to the present case, I accept that the petition was lodged by uploading it on the IECMS on 14th September 2022.  This was one day before the expiry date of the election petition.

22.	As the time limitation of 40 days commenced on 7th August 2022 and expired on 15th September 2022 and the petition was lodged via IECMS on 15th September 2022 at 11:42 pm, I am not satisfied that it was filed out of time.

23.	This finding may be contrary to the date indicated on the petition as 13th September 2022, but it is immaterial because it is one of the issues or rather confusion associated with registration, verification and management of cases under the IECMS by the Registrar and staff of the Registry.	

24.	For the foregoing reasons, I find the second respondent failed to make out this ground of objection and dismiss it.

Notice of Payment of Filing Fee and Notice of Payment of Security for Costs filed outside 40 days 

25.	The second ground of objection is that the petition is incompetent because the notice of payment of filing fee and notice of payment of security for costs were filed outside the time limitation of 40 days.
 
26.	As to security for costs, the law in Section 209 of the Organic Law on Elections is “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.”

27.	As to filing fee, Rule 5 of the EP Rules states:

“A petition shall be filed together with the official receipt or stamped bank deposit slip evidence of payment of the filing fee and of the security deposit.”

28.	It is common ground between the parties that two views were put forward in relation to the application of Section 209 of the Organic Law on Elections and Rule 5 of the EP Rules.  One view sponsored by the second respondent is that the security deposit for costs and filing fee must be paid at the time of filing the petition.  This view is represented by the Supreme Court case of Paru Aihi v Peter Isoaimo (2015) SC1598, Nupiri v Powi (2023) SC2459 and Nasam v Sungi & Electoral Commission (2024) SC2552 and National Court cases of Moses Manwau v Allan Bird (2023) N10249, Ibo v Hagahuno (2023) N10322, Kala v Temu (2023) N10364, Kala v Temu (2023) SC2453 and Dominic v Kaupa (2023) N10361, Nupiri v Powi (2023) N10398.

29.	In the case of filing of the petition using IECMS, that uploading of unendorsed and unsealed petition including receipt of payment for security for costs does not constitute filing of the petition until the petition is sealed with the seal of the National Court and endorsed with an election petition number.  The National Court judgments in Raminai v Pano (supra) and Petrus Thomas v William Bando (supra) represents this view.

30.	The petitioner proposed the second view.  It is this the time to pay the security deposit for costs and filing fee is not limited to the time of filing of the petition but any date prior and including the date of filing of the petition but before the expiry of 40 days. The same view applies to a petition registered using IECMS.  This view is represented by the National Court judgments in Jean Parkop v Gary Juffa (supra) and Francis Marus v Hon. Francis Galia Maneke & Electoral Commission (supra).

31.	I prefer the latter view because to give the expression “At the time of filing the petition” in Section 209 a literal interpretation will lead to absurdity.  This is because the days of handing over cash or cheque at the Registry counter is long gone.  A petitioner cannot be expected to hand over cash or cheque at the Registry counter when filing his or her petition. These days, the payment of security deposit for costs is done at the bank to the Registrar’s Trust Account and copy of the bank deposit slip form is presented to the Registrar and staff of the Registry as evidence of payment of the security deposit.  

32.	As in the case of filing a petition, the duty of a petitioner is to present the official receipt or stamped bank deposit slip with the petition for filing at the National Court Registry.  Beyond that point, it is the responsibility of the Registrar and staff of the Registry to verify the payment of security deposit and if in order, issue a notice of payment.  The date of notice of payment may vary from case to case because of the time to complete the verification process by the Registrar and staff of the Registry and it is immaterial to determine the date of notice of payment of the security deposit.

33.	As to the payment of filing fee, I also prefer the latter view for the reasons given in the case of payment of security for costs.

34.	In the present case, the official receipt of filing fee of K1,000.00 and stamped BSP Bank deposit slip of security deposit of K5,000.00 were uploaded with the unsealed copy of the petition on the IECMS on 14th September 2022 at 11:42 pm. 

35.	As the time limitation of 40 days commenced on 7th August 2022 and expired on 15th September 2022 and the official receipt of filing fee of K1,000.00 and stamped BSP Bank deposit slip of security deposit of K5,000.00 were uploaded with the unsealed copy of the petition on the IECMS on 14th September 2022 at 11:42 pm, I am not satisfied that the petitioner paid the filing fee and security deposit for costs outside the time limitation of 40 days.

36.	For these reasons, I am not satisfied that the second respondent has made out this ground of objection and dismiss it. 

Failure to Plead Facts

37.	The law stated in Section 208(a) of the Organic Law on Elections is that “A petition shall set out the facts relied on to invalidate the election or return…” The word “facts” used in Section 208(a) is not defined in the Organic Law on Elections, but case law say that “facts” are “material facts”, or “relevant facts”, or “essential facts”, or “necessary facts”, or “sufficient facts” or “base facts” which a petitioner must plead to constitute a ground to invalidate an election or return.  In the context of this petition, the onus is on the petitioner to plead “material facts”, or “relevant facts”, or “essential facts”, or “necessary facts”, or “sufficient facts” or “base facts” to constitute the ground on illegal practices at polling and counting to invalidate the election or return of the first respondent.  Holloway v. Ivarato [1988-89] PNGLR 99.

Overview of Allegations of Fact

38.	According to paragraph 3 of the petition, the total number of allowable ballot papers remaining in the count for the seat of Kagua Erave Open after last elimination was 46,529 votes.  The absolute majority required to win was therefore 23,266 votes.

39.	At paragraph 4 of the petition, the petitioner alleges that on 6th August 2022, the first respondent was declared member elect for Kagua Erave Open with 27,816 votes and the petitioner was the runner up with 18,713 votes.

40.	And at paragraph 5 of the petition, the petitioner alleges that the winning margin, this is the number of votes the first respondent scored exceeding the absolute majority, according to the declaration, was therefore 4,550 votes.

41.	As to the allegations, I set them out from paragraph B6-55, and relief sought at paragraph D hereunder:

Illegal practices – Ballot boxes for 21 wards highjacked

6.	The second respondent is established under the laws of Papua New Guinea and is responsible for the conduct of free and fair elections when they fall due according to the laws of Papua New Guinea especially, the Organic Law.

7.	The second respondent was responsible for the security and integrity of the 2022 National Election process for Kagua Erave Open Electorate from the polling to the counting.

8.	There are 29 wards in the Erave Local Level Government area, in the Kagua Erave Open Electorate.

9.	In past elections the ballot boxes for the 29 wards in Erave LLG were transported by helicopter.

10.	Albert Wens was appointed Returning Officer for Kagua Erave Open electorate on 6th May 2022 by notice in the National Gazette.

11.	In the 2022 National General Elections, Returning Office in consultation with the second respondent directed that ballot boxes for twenty-one (21) wards in the Erave LLG areas would be delivered for polling by road.

12.	Following are the twenty-one (21) wards which ballot boxes for both open and regional were transported for polling by road indicated also are the number of electors for those wards in the 2022 common role for Kagua Erave Open.

a)	 Galu		-	1016 voters
b)	Tiripi		-	1487 voters
c)	Batri 1 		-	967 voters
d)	Batri 2		-	827 voters
e)	Iamorubi		-	1060 voters
f)	Kopere		-	573 voters
g)	Erava Station 	-	684 voters
h)	Koyari		-	605 voters
i)	Tsimberigi		-	794 voters
j)	Kerabi		-	1147 voters
k)	Menagiri		-	367 voters
l)	Marorogo		-	485 voters
m)	Waro		-	378 voters
n)	Besaboru 1		-	364 voters
o)	Besaboru 2		-	927 voters
p)	Pawaii 1		-	537 voters
q)	Pawaii 2		-	339 voters
r)	Sau			-	448 voters
s)	Pobu Worok 1	-	1037 voters
t)	Pobu Worok 2	-	294 voters, and
u)	Niae/Somere Sawmil -	845 voters

13.	The other eight wards in the Erave LLG ballot boxes were to be transported by helicopter as per the directions of Mr Wens and the Electoral Commission.  Following are in the eight wards which ballot boxes were transported by helicopter indicated also are the number of electors for those wards in the 2022 common role for Kagua-Erave Open.

a)	 Barowai		-	527 voters
b)	Keba			-	795 voters
c)	Sirigi			-	976 voters
d)	Sopose		-	599 voters
e)	Waragu		-	633 voters
f)	Tiripi			-	460 voters
g)	Boro			-	640 voters
h)	Waposali		-	581 voters

Ballot Boxes Transported by road for polling

14.	The second respondent had fixed the date for polling for Kagua Erave Open Electorate elections for Tuesday 12th July 2022.

15.	On Tuesday, 12th July 2022 ballot boxes for twenty (21) wards in Erave LLG’s were transported from Kagua Station by road.  The ballot boxes were transposed in a Dyna truck accompanied by:

a)	The Assistant returning officer Mr Seth Painaki; and
b)	Presiding officers and other polling officials; and
c)	Candidate including Nemo Yalo, Yumeli Wala, Topa Mata and Henry Keto, and
d)	Security personnel.

16.	At around 6pm at Porako Ward the security personal turned around and returned to Kagua Station.

17.	After Porako Ward, the ballot boxes for Batri 1 ward, Batri 2 ward, Tiripi Ward and Galu ward were delivered.

18.	At around 9.00 pm that night the polling team transporting the ballot boxes for the 17 Wards encountered a road block at Yalapala village set up by supporters for candidates Marcus Kamali and Topa Mata.

19.	The supporters of candidate Marcus Kamali forcefully took the ballot boxes for 4 wards namely;

a.	Kopere		-	573 voters
b.	Pobu Work 1	-	1044 voters
c.	Pawaii 2 (Pawabi) -	349 voters
d.	Menagiri	    	 -	372 voters

20.	The driver of the truck delivering the ballot boxes and some presiding officers ran away in fear of their lives at the roadblock.

21.	On 13th July 2022, at about 1pm at the road block at Yalapala, candidate Topa Mata had the ballot boxes for the remaining thirteen wards transferred from the Dyna truck to his own truck and took the ballot boxes and the remaining presiding officers to his residence which was not far from Erave Station.  The ballot boxes are for wards referred to in paragraph 12 above.

22.	At about 4.00am the same day, at the resident of Topa Mata, Vincent Roy and the presiding officers for the respective thirteen wards commenced signing and marking ballot papers and stuffing them into the respective ballot boxes.  The unmarked ballot papers were marked by persons acting on the direction, supervision, and instructions of Topa Mata into the ballot boxes for the 13 wards.

23.	At about 9.00 am Joel Reke Raitano, a candidate attended to the residence of Topa Mata and demanded that Topa Mata return the ballot boxes to the respective polling places for polling.  Topa Mata refused to return the ballot boxes to the gazetted polling places.
24.	Between 10.00 am to 11.00 the same day, the candidates, including Mr Nemo Yalo, Mr Henry Keto and Mr Yumeli Wala, the ARO and electors attended to Mr Topa Mata’s residence to talk to him and request that he release the ballot boxes for the 13 wards for polling.  Topa Mata refused their request.

25.	Soon after near the residence of Topa Mata a fight erupted between the supporters Topa Mata and supporters of other candidates as they had been informed that Toa Mata had some of the presiding officers at his residence marking ballot papers for him.

26.	The unmarked ballot papers were marked by persons acting on the direction, supervision, and instructions of Topa Mata and placed into the ballot boxes for the 13 wards for Kagua-Erave Open Electorate.

27.	Later that same day, the Papua New Guinea Defence Force personnel were airlifted to Erave Station to conduct a situational report on the progress of the polling and attempted to reason with Topa Mata to return the ballot boxes for the 13 wards and Topa Mata continued to refuse to return the ballot boxes.

28.	Polling was not conducted in any of the seventeen wards.  There are 11,096 electors on the common role for the 17 wards.  Therefore, 11096 electors did not exercise their right to vote a representative into parliament to be their mandated leader.

29.	On 14th July 2022, the Assistant Returning officer wrote a letter to the Southern Highlands Province Provincial Returning Officer, Mr Alwyn Jimmy confirming that the ballot boxes from the 17 wards were hijacked.

30.	Counting for the Kagua Erave Open Electorate started on 23rd July 2022 at Mendi, Momei Oval.  Counting begun at Mendi once all the ballot boxes were returned.

31.	On the 25thJuly 2022 the Returning Officer wrote to the Electoral Commissioner confirming that the ballot boxes for the seventeen wards in Erave LLG were hijacked.

32.	The failure of the second respondent to provide adequate security to ensuring the ballot boxes for the 17 wards in Erave LLG were transported to the polling places for polling and to ensure that the electors could exercise their right to vote effected the rights of 11,096 electors.  Therefore, the second respondent erred within the meaning of section 218 of the Organic Law by not providing adequate security during the elections.

Ballot boxes for 4 wards not delivered to gazette polling places

33.	On Wednesday 13th July 2022 ballot boxes for 8 wards in the Polopa area were transported by helicopter.  The eight wards are detailed at paragraph 13 above.

34.	Sixteen ballot boxes (eight ballot boxes for the open election and eight ballot boxes for regional election) were transported from Kagua Police Station by helicopter.

35.	The ballot boxes for the eight wards were delivered as follows:

a.	The gazetted polling place for Barowai Ward was Barowai Hausman, but the ballot boxes for the ward was taken to Tiripi, and the 527 electors from Barawi ward did not vote.

b.	The gazetted polling place for Keba Ward was Kele Hausman, but the ballot boxes for the ward were taken to Waposale, and the 795 electors from Keba ward did not vote.  An elector Tom Kekae could not vote, including other electors.

c.	The gazetted polling place for Sirigi Ward was Siriga Hausman but the ballot boxes for the ward were taken to Waragu, and the 976 electors from Sirigi ward did not vote.  An elector Same Kavwe could not vote, including other electors.

d.	The gazetted polling place for Sopose Ward was Sopose airstrip but the ballot boxes for the ward were taken to Waragu, and the electors from Sopose ward did not vote.  An elector Akara Mano could not vote, including other electors.

e.	The gazetted polling place for Tiripi Ward was Kalolo aid post and the ballot boxes for the ward were taken to Tiripi.

f.	The gazetted polling place for Waragu Ward was Waragu field and the ballot boxes for the ward were taken to Waragu.

g.	The gazetted polling place for Boro Ward was Puputao airstrip and ballot boxes for the ward were taken to Boro.

h.	The gazetted polling place for Waposale Ward was Waposale airstrip and the ballot boxes for the ward were taken to Waposale.

36.	Polling did not take place at the gazetted polling places referred to above in paragraphs 37 (a) to (d), as the respective ballot boxes were dropped off by the helicopter at place not gazetted for polling.

37.	There are a total of 2,897 electors of the four wards referred to above, paragraph 37 (a) to (d) that could not cast their votes or exercise their right to vote and elect a representative into parliament.

38.	At the counting the Returning officer erred when he did not set aside the 4 ballot boxes, and counted the ballot papers in the ballot boxes for the four wards named in paragraphed 35 (a) to (d) and paragraph 13 (a) and (d) above and added the votes to the tally.  The second respondent erred by counting the ballot papers as they were not lawfully cast and should have excluded the ballot boxes from the four wards from scrutiny.

Ballot boxes for four wards abandoned at Kagua Police Station

39.	On 12th July 2022 the polling team from Aboda comprising of the presiding officer, Tonny Bara, Assistant presiding officer, polling officials and security personnel were transported to Aboda Ward on or about 11.00am for the commencement of polling.

40.	The polling area and the eligible electors assembled themselves in anticipation to commence polling.  The polling station was divided by the polling officials to two separate booths for men and women in the presence of the senior inspection Giles Ombi of the Correctional Institutional Services, other security personal and the polling officials.

41.	The polling commenced within the same day and the electors cast their ballots democratically with no interference or illegal conduct at or around the polling station.
42.	The polling process concluded at 6.00pm and the ballot box was locked and the tags with the numbers were attached.  A total of 1500 ballot papers were issued by the second respondent.  All 1,500 ballot papers distributed were used at polling.

43.	The polling team overnighted at Aboda and stored the ballot boxes at Aboda, waiting to be extracted the next day.

44.	On 13th July 2022, the next day, the security personal returned to Aboda and retrieved the ballot boxes and confirmed the seal and tag numbers.

45.	On 12th July 2022 the polling team for Ibia Ward comprising of the presiding officer, Benjamin Randa, assistant presiding officer, polling officials and security personnel were transported to Ibia Ward for polling to begin. 

46.	The polling team and security personnel arrived at midday and commenced the preparation for polling by setting up the polling stations.

47.	The polling officials had set up separate booths for the electors to line up to cast their ballots.

48.	The electors assembled themselves according to the set up by the polling officials and commenced casting of their ballot till it was concluded in the afternoon, in the presence of security personnel.   All 995 ballot papers issued to the ward were used.

49.	The ballot boxes were stored at Ibia, and the polling team overnighted at Ibia.

50.	On 13th July 2022 the ballot boxes were retrieved from Ibia Ward and delivered to Kagua Police station with the seal and tag numbers confirmed by the polling team.

The abandonment of ballot boxes for 4 wards at Kagua Police Station

51.	The next day, on 14th July 2022 at Kagua Police Station, when all the ballot boxes for Aiya LLG have been loaded onto trucks to transport to Mendi for the counting candidates and their supporters demanded that the ballot boxes for Aboda, Ibia, Puti and Usa Wards be handed to them.  The Assistant Returning officer and the security personnel conceded to the demands and abandoned the ballot boxes for Aboda, Ibia, Puti and Usa Wards at Kagua Police station for the candidates and their supporters to take and destroy.

52.	Actual force was applied, and threats made by candidates, including Wesley Raminai and the first respondent and their supporters to forcefully take and destroy ballot boxes aforesaid in paragraph 51 above.

53.	On the same day after the petitioner learned (sic) that the ballot boxes for Adoba, Ibia, Puti and Usa wards were taken and destroyed, he made a formal report at Mendi Police Station and wrote to the Returning Officer informing him that the ballot boxes were taken from Kagua Police Station and for the Returning Officer to confirm what would be done. 

54.	On 21st July 2022 the Returning Officer in consultation with the Southern Highlands Provincial Election manager organised re-polling for Puti and Usa Wards, but not for Aboda and Ibia wards.

55.	The presiding officer journals for Aboda Ward (1,500 electors) and Ibia Ward (995 electors,) records a total of 2,495 electors cast ballots and their votes were not counted as the ballot boxes were abandoned by the second respondent at Kagua Polica Station.

56.	THE GROUNDS upon which the petitioner relies are:

1.	The illegal practices committed by various named people constitute the following the illegal practices within the mean of section 215 (3) (b) the Organic Law:

(i)	Unlawful stuffing of the Ballot Box, contrary to section 110 (1) of the Criminal Code Act and section 178 (1) (g) & (h) of the Organic Law, and

The result of election for Kagua Erave Open was likely to be affected when the allegations considered cumulatively, the votes affected illegal acts pleaded in the petition and that it is just that the election be declared void.  The facts relied on are set out above, from paragraph (sic) 1 to 55.

2.	The second respondent erred pursuant to section 153A of the Organic Law when the RO admitted into scrutiny ballot boxes for Barowai Ward, Keba Ward, Sirigi Ward and Sopose Ward which ought to have been excluded, as the ballot papers in the ballot boxes were not lawfully cast, and ballot boxes were tampered with, and the integrity of the ballot papers therein were compromised.  These errors and omissions resulted in 2,897 ballots wrongfully admitted to scrutiny, which were sufficient to affect the result of the election as the winning margin is 4,550 votes.  The facts relied on are set out above from paragraphs 1 to 13, and paragraphs 33 to 38.

3.	The error of the second respondent not to provide adequate security for polling and from polling places to the counting, is a breach of its constitutional function and responsibility thereby contravening section 50 and 126 of the Constitution and section 15 and 218 of the Organic Law.  As a result of the failure to provide and maintain adequate security to ensure polling, safe custody, control, and care of the ballot boxes a total of 16,473 votes are affected, and as the winning margin in 4,550 votes, the result of the election is affected.  The facts relied on are set out above from paragraph 1 to 55.

42.	It is common ground between the parties that the pleadings disclose allegations of illegal practices and errors or omissions under Sections 215 and 218 of the Organic Law on Elections respectively.

43.	Whilst this proposition is accepted, the first respondent submitted that it is not permissible to lump together the two allegations and rely on them as grounds to challenge his election.  This is because the tests for illegal practices under Section 215 and errors or omissions under Section 218 of the Organic Law on Elections respectively are different.  It is for this reason that the petitioner must separate them in the petition.

44.	The petitioner submitted that a petition is not incompetent for pleading and relying on both illegal practices and errors or omissions if the petition pleads the facts in support of each allegation.  In this case, when the petition is read as a whole, the alleged illegal practices occurred at polling where it is alleged that ballot-boxes destined for gazetted polling locations were hijacked on the way by supporters of candidates including the supporters of the first respondent.

45.	In addition, at polling, the alleged errors or omissions was that the second respondent failed to provide adequate security to secure the safe delivery and return of the ballot-boxes.  Consequently, the electors of each gazetted polling location were denied or deprived of their constitutional rights under Sections 50 and 126 of the Constitution and Sections 215 and 218 of the Organic Law on Elections to vote.

46.	Finally, the petitioner alleges errors or omissions at counting when the Returning Officer did not exclude the ballot-boxes for Barowai Ward, Keba Ward, Sirigi Ward and Sopose Ward on the ground that they were hijacked, and ballot-papers were illegally marked under Section 153A of the Organic Law on Elections.

47.	I accept the proposition that the petitioner in this case pleaded and relies on both allegations of illegal practices and errors or omissions in the petition. I also accept the proposition that a petitioner must not lump together allegations of illegal practices and errors or omissions because different tests apply to prove them. In Mune v Agiru (1998) SC590 the Supreme Court explained the difference between illegal practices under Section 215 and errors or omissions under Section 218 of the Organic Law on Elections respectively.  Numerous cases including Philip Undialu v Francis Potape & Electoral Commission (2020) SC1981 have reinforced the difference between illegal practices and errors or omissions.

48.	However, I agree with the petitioner that this is not a case where the allegations of illegal practices and errors or omissions are lumped together.  This is because when the petition is read as a whole, it discloses three distinct allegations as articulated by the petitioner above.  It follows that the ground on the petition being incompetent for lumping together the allegations of illegal practices and errors or omissions is without merit, and it is dismissed.

49.	Similarly, the ground on alternative pleadings is without merit and it is dismissed because it is abundantly clear from reading the entire petition that three different allegations are being pleaded and relied upon by the petitioner to invalidate the election of the first respondent.  Moreover, it is not expressed or pleaded any where in the petition that the alternative ground to illegal practices is errors or omissions.  For these reasons, I am not satisfied that the respondents stand the risk of being subjected to contradictions and/or confusion by reason of the current state of pleadings in their response to the allegations of illegal practices and errors or omissions: Francis M Potape v Philip Undialu & Electoral Commission (2018) SC1680 and Philip Kikala v Electoral Commission (2013) N4960.

50.	On the other hand, the pivotal question is whether the petition is incompetent because it lacks facts to support each of the allegations of illegal practices and errors or omissions.  

Illegal Practices at Polling

51.	The first respondent submitted that illegal practices which Section 215 of the Organic Law on Elections refers to are offences of the kind found in Section 178 of the Organic Law on Elections and Sections 105 and 106 of the Criminal Code.  Conduct complained of and not found in any of these provisions cannot be illegal practices for the purposes of invalidating an election under Section 215 of the Organic Law on Elections.

52.	The first respondent submitted that in this case the alleged hijacking of ballot-boxes does not fall into any of these provisions to constitute an offence for the purpose of illegal practices to invalidate his election.  In addition, as there are multitude of offences constituting illegal practices, the pleading make no reference to the relevant law which the petitioner asserts constituted illegal practices.  Secondly, there are no facts in relation to change of polling venues to constitute grounds of illegal practices under Section 215 of the Organic Law on Elections.  Finally, there are no facts on the number of votes allegedly hijacked by the supporters of the candidates and first respondent.

53.	The petitioner submitted that this ground has no merit because the facts including votes from 16,473 eligible voters relevant to establishing the allegations of illegal practices have been pleaded.  

54.	I have read the allegations in the petition which I have recited at [41] above and I uphold the submissions of the petitioner.  First, while it is preferrable to refer to the relevant provisions of the law as constituting the offence of illegal practices, I am of the view that it is not necessary and fatal if it is omitted.  Secondly, the submissions that Section 178 of the Organic Law on Elections or Sections 106 and 107 of the Criminal Code does not prescribe the offence of hijacking of ballot-boxes is misconceived because in addition to the act of hijacking ballot-boxes being an offence under Section 191(14) of the Criminal Code, the act of stuffing the ballot-boxes is also an offence under Section 110(1) of the Criminal Code.  Section 110(1) states:

“A person who places, or is privy to placing, in a ballot-box a ballot-papers that has not been lawfully handed to and marked by an elector is guilty of a crime.”

55.	For the petitioner to prove the allegation constituting the offences of hijacking and stuffing of ballot-boxes, it is also necessary to alleged and prove that the ballot-boxes destined for the gazetted polling locations did not reach the said polling locations for electors to cast their votes but hijacked and taken to another location where the stuffing of the ballot-boxes occurred.  These are the allegations the petitioner asserts at paragraphs 6 to 32 of the petition.  The ballot-boxes were transported by road but on the way, hijacked and taken to another location where the ballot-papers were illegally marked by supporters of candidates.  According to paragraph 18 of the petition, from the ballot-boxes for Kopere Ward, Pobu Worok 1 Ward, Pawaii 2 (Pawabi) Ward and Menagirigi Ward totalling 2,338 electors missed out on voting. 

56.	In a second case of hijacking and stuffing of ballot-boxes, at paragraphs 12(e) to (u) and 21 to 25 of the petition, ballot-boxes for 17 polling locations totalling 10,556 electors (based on the addition of figures pleaded at para. 12(e) to (u) as opposed to 11,096 electors pleaded at para. 28) did not cast their votes, 

57.	Add 2,338 and 10,556 and a total of 12,894 electors did not cast their votes. There may be an issue that the figure of 12,894 does not represent the number of votes affected by the illegal practices of hijacking and stuffing of ballot-boxes, but that that is a matter for evidence.  Relevantly, eyewitnesses accounts of the number of votes from each polling locations, electoral records of the common roll and Form 66A and Form 66B will form the evidence at the trial to prove the number of votes affected by the illegal practices. 	That said, the number of 12,894 electors missing out on voting exceeds the absolute majority number of votes of 4,550 pleaded at paragraph 5 of the petition. 

58.	A slightly different factual allegation is made asserted in the third case of illegal practices.  I note at paragraphs 51 to 55 of the petition, the petitioner alleged that four ballot-boxes from Aboda Ward, Ibia Ward, Puti Ward and Usa Ward where ballot-papers were lawfully cast were taken by use of force and threats from the Assistant Returning Officer and security personnel and destroyed.  A re-polling was conducted, but the ballot-boxes containing ballot-papers from a total of 2,495 electors were abandoned at Kagua Police Station.  This allegation fits the description of an offence under Section 191(14) of the Criminal Code.

59.	When the votes from 2,495 electors in the third case are added to the total number of electors of 12,894 in the first two cases, a total of 15,389 electors were affected by the three instances of illegal practices at polling.  This number exceeds the absolute majority of votes of 4,550 pleaded at paragraph 5 of the petition and shows that the result of the election was affected under Section 215(3) of the Organic Law on Elections: Holloway v Ivarato (supra) and Embel v Komal (2013) N5153.
	
60.	Finally, it is pleaded at paragraphs 6 to 31 of the petition, date, time, places, names of electoral official and candidates which give the respondents the opportunity to verify against their witnesses for the purpose of contesting them at trial.  	

61.	For all the above reasons, the first respondent has failed to make out a case that these allegations of illegal practices at polling are incompetent and should be dismissed.

Errors or Omissions at Polling

62.	As to the ground that the second respondent failed to provide adequate security at polling at paragraphs 6 to 55 and C3 of the petition, the first respondent submitted that there are no facts to support this ground because I note the base facts to support this ground are those pleaded at paragraphs 6 to 55 of the petition.  However, to prove this type of ground, it is necessary for the petitioner to plead facts to show the duty imposed by law on the second respondent to provide adequate security, the description of the adequate security provision, breach of the duty by the second respondent and the loss suffered by the petitioner.

63.	From my reading of the pleadings at paragraphs 6 to 55, I agree with the first respondent that there are no facts to show that the second respondent owed a duty to provide adequate security to the petitioner or candidates for that matter at polling and the description of the adequate security provision.  In the absence of these facts, it is assumed that the second respondent owed a duty to provide adequate security at polling.  In addition, it is also not pleaded what kind of security the second respondent is obliged to provide to constitute adequate security, but the petitioner assumes that some form of security must be provided by the second respondent at polling.  These presuppositions are propelled by the petitioner’s reading of Sections 50 and 126 of the Constitution and Sections 215 and 218 of the Organic Law on Elections.  However, it is not expressed in the pleadings that these provisions of constitutional laws imposed a duty on the second respondent to provide adequate security and the description of adequate security provision.

64.	Secondly, when the ballot-boxes were hijacked and taken to a location where ballot-papers were illegally marked and ballot-boxes being abandoned with no scrutiny, the second respondent breached that assumed duty or committed errors or omissions in the discharge of its assumed duty to provide adequate security at polling and votes from 15,389 electors were not counted.  In my respectful view, the failure to plead the duty imposed on the second respondent to provide adequate security and the description of adequate security provision is fatal to the survival of this allegation.  This ground lacks these vital facts. I am satisfied that the first respondent has made out the objection and dismiss the ground on errors or omissions at polling (lack of provision of adequate security).

Errors or Omissions at Counting

65.	The final ground is based on the allegation of errors or omissions at counting where it is alleged at paragraphs 6 to 55 and C2 of the petition that the second respondent failed to exclude the ballot-boxes that were allegedly hijacked and stuffed with illegally marked ballot-papers under Section 153A of the Organic Law on Elections.  The view presented by the first respondent is that this ground lacks facts to show that the procedure under Section 153A of the Organic Law on Election was complied with by the petitioner.  The petitioner argued that the better view is that the Court invoke Section 217 of the Organic Law on Elections to do real justice and find that the facts pleaded are sufficient to ground an allegation of errors or omissions committed by the second respondent under Section 153A of the Organic Law on Elections.

66.	I reject the petitioner’s submission because it is contrary to the requirements of Section 153A of the Organic Law on Elections. Section 153A states:

“153A. EXCLUDING BALLOT-BOX FROM SCRUTINY.

	(1) Subject to this section, a Returning Officer may refuse to admit to scrutiny a ballot-box containing marked ballot-papers where he is of the opinion that: –

(a) the ballot-papers in it were not lawfully casted; or

(b) the ballot-box was tampered with and the integrity of the ballot-papers in it were compromised.

(2) Where objection is taken to a ballot-box being admitted to scrutiny by a scrutineer or by a polling officer who polled with the ballot-box, the Returning Officer may require the objection and the grounds of the objection to be reduced into writing and may require any responses from a scrutineer to be in writing and for the relevant President Officer and other polling officers as are available at the scrutiny to comment on the objections and the responses given before making a decision on such objection.

(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.

(4) A decision of a Returning Officer under this section may not be challenged other than by way of petition.”

67.	On the other hand, I uphold the first respondent’s submissions that the petition lacks facts to support the allegation of errors or omissions where the second respondent did not exclude the ballot-boxes from the named four Wards from scrutiny under Section 153A of the Organic Law on Elections. At [196] of the judgment in Paias Wingti v Kala Rawali, Electoral Commission & Tom Olga (2008) N3286 and adopted in Samson Malcolm Kuli v James Apaimia & Anton Yagama (2013) N5275 the National Court set out what constitutes facts to support an allegation of errors or omissions or failure to comply with Section 153A of the Organic Law on Elections.  These are:

•	scrutineer, candidate, or polling official must object to a ballot-box being admitted to scrutiny.

•	the returning officer must document the objection.

•	the returning officer must record his decision-making process.

•	the returning officer must state what opinion has been formed and the reasons for forming that opinion.

68.	The petitioner did not plead the above facts.  They are lacking in the petition.  This is fatal to this ground.  I am satisfied that the first respondent has made out this ground of objection and dismiss the ground on errors or omissions at counting (Failure by the Returning Officer to exclude ballot-boxes from being admitted to scrutiny).  

Conclusion

69.	In summary, the first respondent’s objection is upheld in part and second respondent’s objection is dismissed with costs to follow the event.

Order

70.	The orders are:

1.	The first respondent’s notice of objection to competency filed on 13th March 2024 is upheld in part.

2.	Grounds on illegal practices at polling (hijacking and stuffing of ballot-boxes and abandoning of ballot-boxes) are competent and will proceed to trial.

3.	Ground on errors or omissions at polling (second respondent’s failure to provide adequate security at polling) and Ground on errors or omissions at counting (second respondent’s failure to exclude ballot-boxes from scrutiny under Section 153A of the Organic Law on Elections) are incompetent and dismissed.

4.	The second respondent’s notice of objection to competency filed on 11th March 2024 is dismissed.

5.	Costs of the objections shall follow the event.

________________________________________________________________
Lawyers for petitioner: Ashurst Lawyers as agent for Simpsons Lawyers 	
Lawyers for first respondent: Adam Ninkama Lawyers		
Lawyers for second respondent: Kuman Lawyers