Review Pursuant to Constitution Section 155(2)(b); Kopaol v Embel [2003] PGSC 23; SC727 (17 December 2003)

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IN THE MATTER OF AN APPLICATION FOR REVIEW PURSUANT TO SECTION 155(2)(b) OF THE CONSTITUTION

AND IN THE MATTER OF AN APPLICATION TO REVIEW DECISION OF THE NATIONAL COURT TO ALLOW CERTAIN GROUNDS OF THE PETITION EP.NO.66 OF 2002 TO REMAIN AND PROCEED TO HEARING AND THE DECISION OF THE NATIONAL COURT THAT THE ELECTION FOR NIPA/KUTUBU OPEN ELECTORATE WAS INVALID AND THAT THERE BE A BY-ELECTION

PARLIAMENT – National Elections- Judicial Review – Application to quash decision declaring election void and ordering by-election – Objection to competency – Failure to meet requirements of section 208(a) OLNLLGE - Need to plead relevant and material facts – Consistent and coherent pleading - Failure to exercise discretion to dismiss petition at preliminary – Bad pleadings – Burden of Proof - Review upheld – Order for by-election quashed – Petition remains dismissed – Applicant’s return as duly elected confirmed – Constitution, s.155(2)(b), Organic Law on National and Local Level Government Elections N0.3 of 1997, ss.206, 208, 210, 215, 218

Applicant was returned winner as elected Member of Parliament for Nipa/Kutubu Open Electorate in 2002 National Elections. He ousted the sitting Member the Respondent herein.

A petition challenging the result was filed in the National Court and after preliminary objection was raised objecting to the competency of the petition, all grounds were struck out as incompetent except for two (ground 9 and 13). Those two grounds proceeded to trial and election was overturned and by-election was ordered.

Applicant applied for judicial review under s.155 (2)(b) of the Constitution challenging the decision on two grounds: firstly, both grounds ought not have been allowed to go to trial as they violated s. 208(a) of the Constitution in that no proper facts were pleaded and pleading was poor and inconsistent hence, petition was prohibited by s.210 from being heard; and secondly, there was hardly any credible evidence showing whether results of the election were affected if errors or omissions under s.218 were relied upon-

Held: Firstly, both grounds 9 and 13 were incompetent as they failed to meet the requirements of s.208(a) and the trial judge erred in allowing them to go to trial; secondly, having allowed them to go to trial, there was hardly any credible evidence showing that the result of the election was affected by the alleged errors or omissions of the election officials; thirdly, there is no credible evidence of any relationship between the Applicant and the officials of the Electoral Commission; and fourthly, there is no credible evidence that the Applicant was in any way involved in a conspiracy with the election officials to interfere with free exercise of elections in the Electorate.

Cases cited and referred to:
Neville Bourne v Manasseh Voeto [1977] PNGLR 298.
Malipu Balakau v Paul Torato [1983] PNGLR 242
In re Central Banking (Foreign Exchange and Gold Regulations) [1987] PNGLR 433
Holloway v Ivarato [1988] PNGLR 99
Kasap v Yama [1988-89] PNGLR 197
Raymond Agonia v Albert Karo and Electoral Commission [1992] PNGLR 463.
Micah v Ling-Stuckey [1998] PNGLR 151
Mune v Agiru & Ors [1998] Unreported Judgement of the Supreme Court No. SC590).
Michael B. Nali v Stephen N. Mendopo and Electoral Commission [1998] PNGLR 128
Daniel Tulapi v Charles Luta [2000] Unreported Supreme Court Judgment SC653

Counsel:
G. Sheppard for Robert Kopaol, Applicant
A. Amet, Jr. for Philemon Embel for the Respondent
T. Sirae for the Electoral Commission (with leave of the Court)

This is an application for judicial review of the decision of the court of disputed returns on a petition by Philemon Embel (hereafter "the Respondent") challenging the result of the election of Robert Kopaol (hereafter "the Applicant") as the duly elected Member for Nipa/Kutubu Open Electorate in the 2002 National Elections. The Applicant was the First Respondent in the Court of Disputed Returns and the Electoral Commission of PNG (hereafter "Electoral Commission" or "Commission") was the Second Respondent.

The Commission is not a party in this review proceeding as it was not named as a party as a respondent nor did it file an application challenging the decision of the court below. However it is represented in this review which is objected to by Mr. A. Amet, Jr for Mr. Embel principally on two grounds: firstly, it did not file any review against the decision of the Court of Disputed Return and secondly, it has not been named as a party and therefore in both cases lacked locus standi and need not be heard in this matter.

Mr Amet was unable to cite any authority to the court for both his propositions and we dismissed his objection. We accept Mr Sirae’s submission that Electoral Commission, as the body constitutionally mandated with conducting Parliamentary elections and those of the legislative arms of the local level governments and concerned with all election related matters in Papua New Guinea has legal duty to be heard in election related cases before the court. This has been the view expressed by the court in earlier cases and we see no reason to depart from that position. In any event, it was already a named party in this dispute whose officers are substantially implicated by the respondent of having deliberately "rigged" the election and in all propriety it has substantial obligations to respond where appropriate as far as this proceeding is concerned. Otherwise, the court on its own volition is entitled to call on the Electoral Commission to appear and to assist the court as amicus curiae if this was or became necessary.

The Organic Law on National and Local Level Government Elections (the Organic Law) provides that an election or return maybe disputed by a petition addressed to the National Court and not otherwise. Section 220 of the Organic Law provides that the decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way. The only avenue available for a person aggrieved by the decision of the National Court is by the review procedure under s.155(2)(b) of the Constitution. It is now well established in this jurisdiction that that the Supreme Court has an inherent power to review all judicial acts of the National Court. The Supreme Court in Kasap v Yama [1988-89] PNGLR 197 said that, in a case where a person or a party to proceedings has no right of appeal to the Supreme Court and where there is an important point of law to be determined which is not without merit, the procedures under s.155(2)(b) of the Constitution is available without the need to meet any other established criteria. The Supreme Court in that case followed the reasoning in SC Review No. 45 of 1987 in re Central Banking (Foreign Exchange and Gold Regulations) [1987] PNGLR 433. The Supreme Court also said that there must be a gross error clearly apparent on the face of the evidence before the court should review. See also Malipu Balakau v Paul Torato [1983] PNGLR 242; Mune v Agiru & Ors (Unreported Judgement of the Supreme Court No. SC590).

The tests that have emerged from these authorities for this court’s inherent power to review all judicial acts of the National Court under s.155(2)(b) of the Constitution are:

On a related issue raised we do not agree with the Respondent’s submission that the interlocutory decision is not reviewable. It is a decision of the court that was open to review applying the same principles as Michael Buku Nali v Stephen Naik Mendopo and Electoral Commission [1998] PNGLR 128 (SC542). Prior to 2002 National Elections in the old Election Petitions Review Rules, this ruling would have been subject of immediate review and decision given by the Supreme Court before the petition itself proceeded further. Nali v Mendopo and Electoral Commission[1] was one such case in which the Applicant who was the Respondent in the petition challenged the decision of the National Court refusing to strike out certain paragraphs in the petition. The Supreme Court said[2]:

"We refer here to the principles and reasons expounded in the various cases such as Avia Aihi v The State [1981] PNGLR 81 and Balakau v Torato [1983] PNGLR 242 and Sunu & Ors v The State [1984] PNGLR 305 where the following was stated (in the latter case):

‘The discretionary power to grant review of a decision of the National Court under section 155(2)(b) of the Constitution should be exercised only where: it is in the interest of justice, there are cogent and convincing reasons or exceptional circumstances, and there are clear legal grounds meriting a review of the decision’."

There are therefore two decisions that are subject of the Applicant’s review application. The first is the preliminary ruling of 18th February, 2003 in which the trial judge dismissed all the grounds in the Respondent’s petition but for 9 and 13 which he allowed to proceed to trial. This is the basis of the Applicant’s first ground of review where he contends that those two grounds ought to have been dismissed or struck out because they did not meet the requirements of section 208(a) of the Organic Law and were therefore incompetent and should not have gone past the preliminary objection just like the rest.

The second decision is the final judgment on the substantive trial which was handed down on 29th August, 2003 with full reasons for the decision delivered on 18th September, 2003. The Applicant also seeks review of the final decision. He argues that the trial judge’s conclusion is unsupported by evidence and he acted in excess of his jurisdiction. But more so the Applicant says that even on the evidence of figures provided by the Respondent, if accepted as correct, the result of the election was not affected nor were the figures likely to affect the result at all.

(i) The Learned Trial Judge acted in error of law and in excess of jurisdiction in holding that paragraphs 9 and 13 constituted competent and valid grounds that should be heard in trial of the petition, then both grounds were vague, ambiguous contradictory and fail to set out sufficient and adequate facts pursuant to Sections 208 and 215 of the Organic Law on National and Local Level Government Elections relied on to invalidate the election or return.

(A) That there had been no polling held at Mt Bosavi LLG area, when there was clear and direct evidence supported by airline flight records that Electoral Commission polling teams allocated to the respective polling stations of the area had in fact been duly despatched and are turned with ballot boxes locked and sealed, and such contrary evidenced as was given was so insufficient, inadequate and contradictory that a finding that polling had not taken place could not be reasonably made.

(B) That illegal acts, namely unlawful marking of ballot papers were committed at Muluma Government Station, when the evidence was wholly insufficient and contradictory as not to permit any finding of illegal marking of ballot papers.

(C) That Returning Officers and or electoral officials at Muluma illegally marked the ballot papers which had been are turned unused from polling stations, when the evidence of these allegations was contradictory, inadequate and insufficient to support them.

(v) That the Learned Trial Judge acted in error of law and in excess of jurisdiction in finding that there had been no fair scrutiny for the Nipa/Kutubu election because of:

(d) little explanation had been given why three (3) boxes for (3) areas namely, Kum, Punte and Alamanda had not been counted.

When the Organic Law provides no requirements for all or large percentages of presiding officers to attend scrutiny and or to reconcile records of boxes and ballots prior to scrutiny; when the fact that ballot boxes for Kum, Punte and Alamanda which had been excluded from the scrutiny or count was not a matter of challenge by the petitioner. When the numbers of ballot papers issued over and above ballot papers used does not amount to any electoral error or offence; and, without any finding of numbers of unregistered voters said to have noted, none of these reasons support a finding of an unfair scrutiny.

For the sake of completeness and also to properly understand the Applicant’s complaint in this application, we also set out the full text of grounds 9 and 13 in the petition as pleaded. They are drafted and expressed in these terms:

It is alleged that prior to and during commencement of polling on the 26th of July 2002 for the Nipa/Kutubu Electorate, the First Respondent together with his agents and all servants have committed or engaged in several acts of Undue Influence and Illegal Practises with the knowledge authority and instruction of the First Respondent in accordance with the understanding referred to in the preceding paragraph to procure votes of the registered or eligible electors for the First Respondent and or to return the First Respondent and with the intention to interfere unlawfully in the free voting in elections by the voters thereby contravening Sections 102 and 105 Constitution, Organic Law and Sections of the Criminal Code and Sections 171 and 215 of the Organic Law.

(a) It is alleged that during counting on the 27th of July 2002 at the Agiru Counting Centre in Mendi by reason of the acts referred to in paragraphs 4r, 5, 6 and 7(i), (ii) and (iii) the Returning Officer, Mr. Stanley Komal refused entry to all Presiding Officers from all polling places in the Electorate.

(b) By reason of the facts referred to in sub-paragraphs A(a) above, 121 ballot boxes from the Nipa/Kutubu Electorate were counted without the presence of all the Presiding Officers.

(c) Most of the election and counting officials who participated in the counting of the ballots at the Agiru Centre were in one way or another related to the First Respondent. Some were his brothers, some were his brother-in-laws and even the Assistant Election Manager for the Southern Highlands Province is an in-law of the First Respondent. He was the one that initially rejected the legally appointed counting officials and handpicked new counting officials for counting at the Agiru Counting Centre.

13.1 It is alleged that the Second Respondent and his employers and or agents committed various illegal and improper practises contrary to the provisions of the Organic Law, which if proved would or is likely to affect the final, results of the elections.

(a) It is alleged that the Second Respondent failed to conduct polling at the following polling places on the 8th July 2002 as scheduled which had a total of 3,157 eligible voters. However, there were 5,000 ballots issued to the polling teams from Mt. Bosavi to conduct polling in the areas namely:-

TEAM	POLLING PLACE	WARD	No. of eligible voters
155	DIDESA	1	556
155	MULUMA	1	425
156	WASOWEIDO	7	124
157	BANISA	7	131
158	FOGOMAIYU	9	248
159	SIONI FALLS	9	26
160	KAKADEMAIYA	9	18
161	MUSULA	10	256
162	WELEYO	10
163	ULUDIE	11
164	WAWOI FALLS	11
165	SOMOKOPA	11
166	WANAGESA	8	387

(b) The total ballots issued to the Polling Officials is 1,843 over and above eligible voters on the roll.

(c) Further, the following teams failed to conduct polling at their designated polling places or at all but returned marked ballots as follows namely:-

Rest House	Box	Nos.	Votes Cast
(i) Musala	0115	161	183
(ii) Weleyo	0120	162	362
(iii) Wawoi Falls		164	197
(iv) Somokoba		165	329
(v) Kakademayu	0122	160	104
(vi) Banisa		157	282
(vii) Ulude/Lake Cambell	0116	1163	175
TOTAL			1,632

(d) It is alleged that no polling was conducted in the polling places by those above and it was apparent at the Agiru Counting Centre that more than 1,632 ballot papers that were designated for the above Rest Houses were marked and cast mostly in favour of the First Respondent by the Assistant Returning Officer, one Carolyn Tapi for the First Respondent at the Muluma Government Station and/or at the First Respondent’s house in Mendi.

(e) As a result more than 1,632 eligible voters or registered voters completely missed out on voting, hence being deprived of their right to vote pursuant to Section 50 of the Constitution.

(f) It is claimed that if these 1,632 electors had voted the final outcome of the elections at Nipa-Kutubu Open Electorate could have been definitely affected as the winning margin between the First Respondent and the Petitioner is only 1,996.

(g) Alternatively, as more than 1,843 extra ballots were issued over and above eligible voters on the roll. Consequently, 1,843 illegal votes were marked for the First Respondent.

(h) In the premises the election of the First Respondent be declared not duly elected pursuant to Section 215 of the Organic Law.

(a) It is alleged that on the 7th July 2002, polling commenced at the following areas namely:

and the Presiding Officer namely Carolyn Tapi illegally marked various ballots against the direction of the illiterate electors who intended to cast their votes for the Petitioner.

(b) By reason of the above when asked to identify their choice of candidates the Assistant Returning Officer suggested the name of the First Respondent to the voters who were uncertain about who to vote for and proceeded to mark the votes in favour of the First Respondent thereby contravening Section 50 Constitution and Section 215 Organic Law on National and Local Level Government Elections.

(c) As a result approximately 300 ballot papers were illegally marked in favour of the First Respondent and the rest were returned unmarked contrary to Section 111 of the Criminal Code.

(a) It is alleged that after polling on the 8th July 2002, at Muluma approximately, 2000 ballot papers were returned unmarked to the polling officials led by the Assistant Returning Officer, Wix Sowek.

(b) The polling terms failed to conduct polling at the places referred to in paragraph 13.1A(b) herein and returned to Muluma Government Station.

(c) At the government station, the Assistant Returning Officer namely, Wix Sowek and other supporters of the Second Respondent and various other candidates with the authority, acquiescence and instructions of the Second Respondent marked left over ballots in favour of the First Respondent.

(d) The illegal marking of the returned ballot papers numbering 2000 were marked and cast in favour of the First Respondent in the District Office, Youth Office and the Typing Pool by the following people:-

(e) As a result approximately 2,000 voters from the rest houses referred to in paragraph 13.1A(b) were denied their rights to vote under section 50 Constitution.

(f) Alternatively, 2,000 illegal ballots were marked and cast in favour of the First Respondent contrary to ss.110 and 111 Criminal Code Act.

(g) It is claimed that if the 2,000 voters had freely voted they would have voted for the Petitioner thereby affecting the outcome of the election."

Principally there are two main issues: firstly, whether the trial judge had erred in the exercise of his discretion in allowing the remaining grounds 9 and 13 above to go to substantive hearing as pleaded in ground (i); secondly, whether His Honour erred in his analysis of the evidence before him and his application of the law to the facts in the given circumstances when reaching the ultimate conclusion he did? This is a simple translation of what the Applicant is contending in this review application.

There are also collateral issues that arise although running parallel with the Applicant’s main arguments on viz.:

The first question above obviously will require careful consideration because decided cases tend to support the view that there must be some point of reference to figures or numbers of votes or ballot papers or voters or electors sufficiently high percentage to have affected or likely to affect the declared result before a ground of petition founded under section 215 or 218 is made out. However this case adopted a different school of thought where the declared result was taken to speak for itself from the perspective of the petitioner without reference to any statistical data or information.

The applicant’s case is that neither ground 9 nor 13 of the petition met the requirements of Sections 208 and 210 to have been allowed to proceed to trial. It is submitted that both grounds were very vague, ambiguous, and contradictory and therefore did not disclose real or proper grounds or facts upon which the election result was challenged in order for the applicant to respond to the petition. Trial judge ought not have allowed to remain.

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

The need to plead the facts have been abundantly expressed in Holloway v Ivarato [1988] PNGLR 99 which was applied in Raymond Agonia v Albert Karo and Electoral Commission [1992] PNGLR 463. The question of facts to be pleaded for purpose of section 208(a) has been settled by the Supreme Court in Holloway v Ivarato[3] in judgment of Kapi, DCJ (as he then was) with Los and Hinchliffe, JJ concurring. Under the heading ‘meaning of "facts"’ His Honour said[4]:

"The grounds on which an election may be declared invalid are separate from the facts which constitute those grounds. The requirement of s 208(a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return may be declared invalid. Setting out grounds without more does not satisfy the requirements of s 208(a) of the Organic Law. The facts set out under s 208(a) of the Organic Law would necessarily indicate the ground upon which a petitioner relies. The facts which must be set out under s 208(a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated.

In ordinary civil suits, only material facts are pleaded and not the evidence by which the facts are to be proved: O 8, r 8 of the National Court Rules. The English rules on election petitions have adopted the same rules of pleading.

It would be an unreasonable rule to require the petitioner to set out all the evidence on which a petitioner may rely to prove the material facts. It actual practice, it may require a longer time to collect, gather, or prepare evidence for trial. In some cases, it would not be possible to collect all the evidence within the two months limitation period.

It is also possible for a party to apply to the court at the hearing of a petition for inspection of a roll which has been used in connection with an election in order to prove a ground upon which an election may be invalidated. He does not have to plead this evidence under s 208(a) of the Organic Law. In fact he could not plead this evidence because he would have no way of knowing of it until an application is made to the court for an order for an inspection under s 212(1)(c) of the Organic Law. This supports the view that it is not necessary to plead this evidence under s 208(a) of the Organic Law. I conclude that s 208(a) only requires pleading of material or relevant facts which would constitute a ground and not the evidence by which those facts are to the proved. Bredmeyer J came to the same conclusion in Siaguru v Unagi[5] and the Electoral Commissioner.

In setting out the facts, they must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved." (Emphasis is ours)

In conforming with the principle established in Delba Biri v Bill Ninkama[6] and followed in the above case, in Agonia v Karo[7], Sheehan, J (as he then was) said[8]:

"Any aggrieved person has the right to bring a petition challenging an election for breaches of the electoral process. But an election petition does not inaugurate some general inquiry into the process of an election to see if any offences or omissions have occurred. A Court of Disputed Returns is not an open forum for unspecified complaints where, after all parties have aired their dissatisfaction, the Court sifts the complaints and reports whether, on balance, the election can be considered satisfactory or whether a new election should be held. The Court of Disputed Returns has the duty of hearing and determining only those petitions which challenge an election by definite specific charges that, if proved, will result in an election being set aside.

The Organic Law and the decisions explaining and supporting it, make it clear that such challenges must be specific in defining the breaches alleged. The Supreme Court in Biri v Ninkama [1982] PNGLR 342 at p 345 states that the Organic Law on National Elections:

"... has clearly expressed its intention that a petition must strictly comply with s 208. It is not difficulty to see why. An election petition is not an ordinary cause ... it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority.

In our opinion it is beyond argument that if a petition does not comply with all of the requirements of s 208 of the Organic Law on National Elections then there can be no proceedings on the petition because of s 210."

That statement of the Supreme Court is not only the acknowledged authoritative statement that petitions must comply with the Organic Law, it also states the reasons for the need for that compliance. The Court points out that the electoral process whereby a representative of the people is chosen must be upheld, unless real cause can be shown that that process should be overturned. Such a serious matter, therefore, calls for clear statements of the allegations relied on.

The passage that follows the quotation from Biri v Ninkama[9] cited above further illustrates the need for precision in pleading. It emphasises that s 217 is not some catch-all safety-net for petitions that do not comply with the Organic Law. The passage starts by setting out the provisions of s 217:

The National Court shall be guarded 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.'

This is the closest provision within the Organic Law which might touch upon the question of dispensing with any requirements precedent. The equivalent section in the Provincial Elections (Electoral Provisions) Regulations 1977 was considered in Mapun Papol v Anthony Temu [1981] PNGLR 178 and we are in agreement with what was said there .... This provision becomes relevant only when it has been determined that there is a petition instituted pursuant to ss 184 and 185 equivalent to ss 208 and 209 of the Organic Law .... This provision becomes applicable when the court is determining the merits of the case and all matters connected with the determination of merit."

These 2 passages contain the essential summary of the law on the presentation of petitions. They also bring into sharper focus the issues in this case. That is, just what are sufficient relevant material facts when an allegation of bribery is made. As Mr Sheppard submitted when citing the Supreme Court decision in Holloway v Ivarato[10], they are the facts which constitute the elements of the offence. Anything less defeats the purpose of pleading.

It is well recognised that petitioning on a ground of bribery or attempted bribery against a successful candidate is, in fact, a charge that the election should be overturned because a criminal offence has been committed. It is equally well known that the proof of only one such offence by a successful candidate is sufficient to invalidate an election. This applies even in respect of an unsuccessful attempt at bribery.

But a petition on such a ground is a serious challenge to the electoral process and the rights of the people to elect their representative. An allegation of bribery by the successful candidate is a charge of a criminal offence. Apart from the direct penalty that may be imposed upon conviction of such a charge, there are consequential penalties set out in s 104 of the Criminal Code suspending constitutional rights of taking part in the electoral process, as an elector or candidate for parliamentary elections. Such charges, therefore, must be pleaded with clarity and definition. Again, because of the seriousness of such allegations.

It is not surprising that the standard of proof required in an election petition is, to all intents and purposes, the same as in a criminal court (see Bourne v Voeto [1977] PNGLR 298 at p 302). It was established in that case that, where the ground relied on is undue influence, it is necessary to prove undue influence as it is constituted by the Criminal Code. The offence of bribery must, likewise, be proved." (emphasis ours)

While the passage quoted above is in reference to proving the elements of bribery as in the case of undue influence, it is made in the context of appropriate and proper pleading of the necessary elements of that offence, in line with the ruling of the Supreme Court in Holloway’s[11] case.

These and other authorities in both Supreme and National Courts emphasize the need to plead sufficient facts in logical and coherent manner as possible so that the Respondent can easily respond to the matters alleged in the petition if they implicate or concern him one way or another. One needs only to read the grounds to appreciate the tenacity of this concern.

Ground 9 alleges undue influence which is a criminal offence under Section 102 of the Criminal Code seemingly through some illegal acts or a conspiracy scheme described in paragraphs 4, 5, 6 and 7 of the Petition. The conspiracy theory alleged that certain number of unnamed persons collaborated with the Applicant, his servants and or agents to commit fraud on the election both at polling and during the counting such as excluding the presiding officers from the counting room and bundling of ballot papers in 11s and 12s instead of 10s with the deliberate purpose of manipulating the results of the counting to favour somebody different to Philemon Embel but in favour of the Applicant Robert Kopaol. This conspiracy or plot implicated officers of the Electoral Commission as well as the Applicant, his servants and or agents.

While this allegation is founded on undue influence, the factual basis for this is simply speculative. In the absence of any names being stated, the Applicant submits that the essence of proper response from the Respondent to the petition is defeated. And this is the whole purpose of Section 208 (a) on the necessity to plead facts, not just any facts, but relevant and material facts with sufficient particularity so that the issues are ascertainable.

And the reason for this is pretty simple. Because the allegation is one of undue influence, if the winning candidate is found guilty of committing that criminal offence, the law says that his election must be declared void – Section 215 (1) Organic Law on National Elections.

But the Organic Law also states that the National Court cannot declare a person returned as elected not duly elected or declare an election void on the ground of illegal practice committed not by the winning candidate but by some other persons if he had no knowledge of or anything to do with it. In other words he did not authorise that illegal practice and was not aware of it.

The second part of this law under Section 215 (3) (b) is that the National Court cannot declare that a person returned as elected was not duly elected or declare an election void on the ground of illegal practice not amounting to 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.

We emphasise the word "just" because it is the key word in considering whether a person returned as duly elected be declared as not duly elected or his election be declared void on mere conjunctures or ambiguous and incoherent pleading that fails to clearly define the true nature of allegations except mere complaints of disgruntled losing candidates and their supporters.

The significance of pleading adequate facts with clarity is highlighted in the cases referred to. The whole purpose of the principle developed by case laws on pleading is to ensure that unmeritorious petitions do not get past section 208 as prohibited by Section 210 because the Court has a duty to safeguard the democratic exercise of free franchise and the majority choice of leader is defended. That is the whole scheme of the law on elections worldwide where democracy prevails.

It is therefore essential that pleading must show with some clarity and particularity that where the Respondent was relying on illegal acts or illegal practices by the winning candidate falling short of bribery or undue influence or attempted bribery or undue influence, such acts must be likely to affect the result of the election.

The totality of the pleadings in paragraph 9 of the Petition and even paragraph 13 for that matter falls far short of showing that on the given facts the result of the election was/is likely to be affected. Quite apart from this it is even impossible for both grounds to survive after trial of the issues arising therein because they were dependent on paragraphs 4, 5, 6 and 7 which were really the legs that supported or nurtured the conspiracy theory. But no evidence was led, direct or indirect, of the Applicant conspiring with the electoral officers engaged in the polling duties to do what the Respondent alleged and that accusation remained baseless and unfounded from beginning to the end. There is no evidence as to who was involved in the conspiring. The Applicant was accused of it but was not even investigated or cross-examined on his involvement if there was any truth in this.

In the final analysis there was no conspiracy and basis for the allegation so both grounds simply just could not stand.

What is apparent from the pleading is that paragraph 9 is concerned with what happened or did not happen at the counting centre. The complaint is against the Applicant, accusing him of preventing proper supervision and control of voting at the Agiru Counting Centre. What is meant by ‘voting’ here is not clear considering that the allegation relates to counting after voting had all been completed and ballot papers are all now in the counting room at Agiru Centre. The Respondent tried to connect allegation in paragraph 9 to the votes coming in from Mt Bosavi LLG area which compose the allegations in paragraph 13 of illegal acts by polling officials. But the standard and quality of pleading in both grounds are so bad that it is not easy to work out what exactly is alleged.

The trial Judge in his ruling acknowledged the poor quality of drafting of ground 9 and the difficulty that is inherent in trying to understand the true nature of the allegations. In a normal reasoning process one would think that the pleading is ambiguous and because the petition cannot be amended after forty days from the date of declaration, the ground must be declared incompetent. However the trial Judge proceeded to find this pleading to be valid and allowed the ground to proceed to trial.

We note that Counsel for the Applicant Mr Kuwimb made a lengthy submission on this aspect of defective pleading and late amendment and referred to various authorities. Reference was made to Micah v Ling-Stuckey [1998] PNGLR 151 where, in an allegation of bribery by the First Respondent (winning candidate) the petition failed to plead that the person allegedly bribed was an elector and the evidence subsequently called failed to prove that he was even registered on the Common Roll in the name he was referred to in the petition. The trial judge said ‘s.208(a) is very specific- a petition shall set out the facts relied on to invalidate the election or result. Once those facts are pleaded in the petition, there can be no amendment to the petition after forty days prescribed under s.208(e) of the Organic Law.’[12] Recent cases appear to support the same view. The Supreme Court in Daniel Tulapi v Charles Luta [2000] Unreported Supreme Court Judgment SC653 held that there was no power in the National Court to amend a petition after forty days had expired. The Court held:

"This application raises one important threshold legal issue concerning a petitioner's right to amend his petition after the expiration of the 40 days period prescribed by OLNE, s 208(e) for the filing of an election petition and the National Court's power to grant such amendment.

The question is whether a petitioner has a right to amend his petition after the expiration of the said 40 days. This issue was determined by the Supreme Court in Biri v. Ninkama. The Supreme Court said that the petitioner had no right to amend a petition after the 40 days had lapsed. The Supreme Court also ruled in that case that the National Court had no power to make such amendment. To this day, the decision in Biri v. Ninkama has not been overruled. Pursuant to the doctrine of judicial precedent or stare decisis adopted in Schedule 2.8 of the Constitution and the doctrine of subordination of Courts in Schedule 2.9 of the Constitution, the decision in Biri v. Ninkama is binding on the National Court."

The only way for the petition to survive is for the grounds to be amended and properly pleaded but that is specifically prohibited by law. So the petition really cannot stand.

In his ruling on the objection to competency application the trial judge said at pp.2-3 of his judgment when referring to ground 9 (Appeal Book pp267-268):

‘It is alleged that prior to and during commencement of polling on the 26th of July 2002 for the Nipa/Kutubu Electorate, the First Respondent together with his agents and all servants have committed or engaged in several acts of Undue Influence and Illegal Practices with the knowledge authority and instruction of the First Respondent in accordance with the understanding referred to in the preceding paragraph to procure votes of the registered or eligible electors for the First Respondent and or to return the First Respondent and with the intention to interfere unlawfully in the free voting in elections by the voters thereby contravening Sections 102 and 105 constitution, Organic Law and Sections of the Criminal Code and Sections 171 and 215 of the Organic Law.

The quality of drafting does not assist the court to quickly understand as to the allegations themselves and against whom the allegation is directed at. In other words it is not clear in the allegation who did what, where, when against whom and why and how it is supposed to affect what and who!

The First Respondent says this paragraph makes bold assertions of undue influence, and illegal practice. It is too vague and too general without the names of the agents or servants. The Second Respondent supports the First Respondent without reference to clause 9, but the submission relates to lack of specifics. Of course 1 was reminded with what the court had said in Nelson Omagan –v-Leo Unumba and Electoral Commission (1988-89) PNGLR 8. That is mere suspicion that something was wrong in the counting of voting without valid and meritorious reasons is not sufficient to grant a recount.

But putting aside the question of evidence, reading the introductory statement in clause 9 together with case 1 – illegal practice, the Petitioner pleads that the First Respondent together with his agents and servants or with his knowledge, prevented proper supervision and control of the voting at Aigiru Counting Centre to prevent the Petitioner from receiving more votes (see 9 (A—Case 1(e than he had. This is a pleading only and all the petitioner had to do was to show that had it not been for the irregularities there was real possibility that he would have won. I find this pleading to be valid.’ (emphasis ours)

And the trial judges proceeds further. In pp.5-6 of his judgment (Appeal Book pp.270-271) His Honour stated:

"These are rather obnoxious and expensive allegations. But can they pass (sic) the test of competency?

The submissions by the First Respondent challenges not the competency but is inquisitive whether any voters were named and whether if there were no voting at all, how come (sic) some candidates (sic) had received some votes and some councillors had been elected.

The petitioner simply says the Second Respondent had failed to conduct polling at some 13 places at Mt Bosavi where there were 3,157 eligible voters. Some 5,000 ballots were issued to cover the areas. But no polling was conducted at all in these areas.

Further no polling at all was conducted at seven places named in the petition. They were Musala, Welajo, Wawoi Falls, Somokaba, Kakademaya, Bomsa and Ulude/Lake Cambel. Yet these ballot papers, 1,632 of them were returned by Assistant Returning Officer Carolyn Topi marked in favour of the First Respondent. The petitioner claims that had the polling taken place at those designated places, the outcome of the election would have definitely been affected.

The petitioner pleads in the alternative that as there were extra ballot papers issued, 1,843 in number, the equivalent number s were illegally marked in favour of the First Respondent.

This claim and other claims in Part B and C are very serious. If they are found to be true, the election result would definitely be affected.

But what the First Respondent and Second Respondent say. The response by the First Respondent is mere inquisitive like if no polling how come some committees were elected and some candidates received some votes. They submit these are immaterial errors and omission, which would not have affected the result.

Of course in so far as whom an elector might have voted for is secret which is protected under section 218(2) of the Organic Law. But in simple term what the whole of paragraph 13 says is that there was a deliberate foul play call it conspiracy or fraud if you will, by the described and named in paragraph 13. I therefore find this paragraph to be competent."

Similar trend appears in the trial judge’s consideration and determination of ground 13 where he overlooked the general scheme of the Applicant’s objection to the competency of that ground primarily for the same reasons that they lacked the basic essential facts and that the pleading was mishmash of inconsistency and contradictions that even clouded the cogency of the allegation that was raised in this paragraph. On one hand the Respondent was accusing the electoral officials of not conducting polling at Mt Bosavi LLG area which is a complaint of official irregularity or error or omission under section 218, on the other Respondent contradicted himself saying there was polling in the area but in some polling places the electoral officials committed illegal acts by stuffing ballot boxes with illegally marked ballot papers. The pleading in this ground treats as foregone conclusion that the polling officials were servants or agents of the Applicant when there is no evidence of such relationship and nor is there any evidence of any of these polling officials acting for or in the interest of the Applicant with his full knowledge and authority.

Because the law is already well settled in that there can be no amendment to a petition once the forty days period has lapsed, a petition cannot be pleaded in the alternative as in an ordinary civil case. In this case either there was polling in Mt Bosavi LLG or there was none at all. The Respondent could not have it both ways. We have set out the ground in full verbatim as pleaded in the petition itself and the style of pleading is self-evident.

The trial Judge had erred in several material respects. Firstly in respect of ground 9, it was not just an issue on pleading of the petition. That was only a part of it. The real problem was the absence of relevant material facts necessary to sustain the allegations. What was it all about? Was it undue influence against the Applicant either personally or by his agents or servants? If it was through his servants, did the Applicant know and authorise it? The pleading needed to show with clarity what the allegation was about.

We find that His Honour erred in his conclusion as he incorrectly applied the law in the face of the obvious defects in the pleading that he correctly recognised. It is not difficult to see or read that His Honour’s conclusion is a deliberate and calculated choice which His Honour alluded to as only a pleading. In other words, defective or not, it is a pleading error that can be remedied by evidence subsequently.

This is wrong in our view because once the structure is bad, no amount of colouring can improve its internal texture, maybe in its external outlook, probably yes. In other words, if pleading is bad, the ground is structurally unsound and defective or bad in law because the law prohibits amendment of petition once the time has lapsed. Therefore no amount of evidence can cure what is bad at the outset.

The Respondent seemed to be contending here that there was no polling in seven villages in Mt Bosavi LLG because all the votes for those polling places were illegally marked by Polling Officer Carolyn Topi in favour of the Applicant. It does not say how this was facilitated, whether this was done under threat or through corrupt deals or fraud and makes no mention of the presence of police personnel who accompanied polling teams on patrol as members of the polling team. These are just some of the defects quite apart from not mentioning any names of those eligible voters denied right to vote.

The trial judge appears to have been influenced by what maybe described as speculative imagination of what the Respondent believed rightly or wrongly as what may or may not have happened. Whilst there may well be merits in some instances, unless substantiated or capable of being substantiated, such allegations can only remain speculations.

The pleading fails the competency test and we disagree with the trial judge that just because there is suspicion of foul-play that was reason enough for not striking out this ground as being incompetent.

On the other hand however in so far as this ground refers to some 3,157 eligible voters in Mt Bosavi LLG not being allowed to vote, the trial judge can be forgiven for referring this ground to trial so as to not deny the Respondent the benefit of calling evidence to substantiate this allegation. After all, the winning margin between the Respondent and the Applicant was 1,996 votes in favour of the Applicant.

We are of the view that this application can succeed on its first leg which is on the competency test. We do not agree that that the petition should have survived the preliminary objection. But even if we accept the trial judge’s exercise of his discretion in referring both grounds to trial, the final result is also not sustainable in law. We demonstrate this below.

The standing issue is whether the disputed votes did actually affect the result of the election because that is what section 218 is all about. This section reads:

(1) Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election. (Emphasis is ours)

(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election."

And the ultimate question is whether the declaration that the election of the Applicant was null and void is correct both in law and in facts?

This is a very crucial issue and we shall demonstrate its significance in several material respects. Firstly, there is no relationship between paragraph 9 and paragraph 13 either in the pleading or in the evidence before the court, although that is what the Respondent desperately wanted it to appear. Therefore the evidence in relation to ground 9, if believed, cannot be applied in ground 13 to substantiate the theory of general conspiracy to defraud the election. Secondly evidence was led of illegal markings of the ballot papers which were strongly refuted and counter-allegations were made against the Respondent’s witnesses on very crucial matters but remained unexplained to the end. Thirdly, trial judge did not thoroughly analyse the evidence tendered by the parties and consequently failed to make any specific finding as to who he believed to reach his conclusion. Fourthly the trial judge did not properly apply his mind to whether the result of the election was affected, and if so, how. Fifthly, His Honour’s concluding remarks appear to show that he found against the Electoral Commission for not calling any evidence, thereby shifting the onus of proof, to satisfy him on the matters raised in the evidence of the Respondent. And finally, His Honour fails to justify why a recount could not have sufficed if he found the result to have been affected without ordering a by-election.

Ground 13 of the Petition comprised a total of 4 pages, no less than 18 paragraphs and two tables pleading allegations of illegal and improper practices or official irregularities by the Electoral Commission, its servants or agents.

It was alleged that the Electoral Commission through its servants or agents failed to conduct polling in Mt. Bosavi LLG where a total of 3157 eligible voters were denied opportunity to exercise their right to vote under Section 50 of the Constitution.

We highlighted the inconsistency and contradiction in the pleading of Ground 13 because while 13.1A(a) specifically stated that no polling had taken place in Mt. Bosavi LLG and named 13 villages that were not accorded the opportunity to vote, paragraphs 13.1B and 13.1C stated that polling did take place in those villages named in paragraph 13.1A except that the ballot papers were marked by the electoral officials in favour of the Applicant. The allegation simply put is that the officials cheated illiterate voters who did cast their votes by marking their ballots in favour of the Applicant instead of the candidates of their choices. Consequently only 1632 votes were cast at Mt. Bosavi LLG.

The petition alleged that the Electoral Commission through its servants and agents illegally marked ballot papers instead and stuffed ballot boxes with ballot papers marked in favour of the Applicant and it implicated several persons of engaging in those illegal acts. Several presiding officers called by the Respondent gave evidence of marking the ballot papers but there is no evidence that they all marked them for the Applicant. Other presiding officers refuted the claims made by those called by the Respondent.

The issue then was one of credit to be determined upon analysing the conflicting evidence of the witnesses and determining who was telling the truth and who was lying or telling untruths.

On the facts and figures pleaded in the petition, the Applicant submits that they are simply unreliable as they are unsubstantiated by credible evidence. Whatever the figure that is relied upon by the Respondent in this review, whether it is 1843 eligible voters denied right to vote or 1632 votes cast, assuming they would have all gone to the Respondent, the result of the election was not affected at all or would have not been affected by these figures (if believed). After all, the winning margin between the Applicant and the Respondent was 1996 and accepting the bigger of the two figures which is 1843, the Applicant still comes out the winner by 153 votes, if not 302. This is excluding all the votes counted from Mt Bosavi LLG cor[sic] respective of who they want to. But this is all wrong because it is all speculation and assumption.

Therefore, if the Respondent relied upon illegal acts of the officials of the Electoral Commission to have this election result nullified, it was incumbent upon him to show that their errors and omissions affected the result of the election.

The issues to be resolved in Ground 13 could only be determined on who the Trial Judge believed. The Trial Judge made no determination as to findings of facts on who he believed because this was quite crucial. Generally however His Honour appeared to have analysed the evidence in favour of the Respondent by seemingly shifting the blame on the Electoral Commission for not calling evidence.

The shifting of the onus of proof is clearly discernible from His Honour’s judgement of 18th September 2003 which is an amplification of his ruling and orders made on 29th August 2003,in particular what he says in summing up of his judgment at p.14 of the Judgment (Appeal Book p.288):

"In summary, I am not convinced that voting was conducted at each and every designated place. The reasons among others, is that I am not convinced that polling officials and the boxes were dropped of by plane or helicopter in every designated place. I am not even convinced, even if extra ballot papers were issued for good reasons, they had been misused. That is some were given to unregistered voters to vote. I am not even convinced that no illegal marking at all had taken place at Muluma government station.

Above all I am not convinced that there was proper scrutiny at the counting centre. There was a concession that for the sake of security, scrutiny had the law priority. I find these to be serious error going against the need to ensure each voter’s vote to be properly screened and counted.

As to whether the result would have been affected at all, I consider it to be so. Three ballot boxes were not counted. Security was tight one way that was against the Petitioner."

We are unable to see how the trial judge could have concluded on such evidence that the result of the election was affected. What did he mean by that? Which evidence was he referring to? The allegation of conspiracy was not substantiated, the evidence of ballot-marking by presiding officers was not conclusive as was strongly denied by others, inconsistencies and contradictions in the evidence reigned high and the figures presented did not advance the Respondent’s final tally of votes collected. If the figures did not on the evidence before the court affect the result such as placing the Respondent ahead of the Applicant, why then declare the election void? Nowhere in his reasons for decision has the trial judge explained this. The rejections of these ballot boxes were adequately explained. In an area where only 411 registered voters lived and over 900 votes were cast, all belonging to the Respondent is ipso facto clear evidence of tampering with the ballot boxes. Tampering is an electoral offence and is punishable by court fine upon conviction.

The burden of proving allegations pleaded in a petition by a losing candidate in an election petition has never shifted or changed since Neville Bourne v Manasseh Voeto [1977] PNGLR 298. Chief Justice Frost said[13]:

"This brings me to the onus of proof. There are two types of cases which come before this Court under the Disputed Elections provisions of the Organic Law and they are, first, cases where the petition is founded on irregularities by electoral officials, and the other consists of these corrupt or illegal practices including undue influence. The onus is, of course, on the petitioner in a case such as this. What we are concerned with here is the degree of proof. Even in regard to the first class of case, that is, those based on electoral irregularities, it is recognized, to use the words of Stephenson L.J. in relation to an English provision in similar form to the Organic Law, s. 218(1), that "... an election is a serious — and expensive — matter and is not lightly to be set aside." Morgan v. Simpson[14]. This has a particular application to this Papua New Guinea electorate in view of the hazardous conditions and hardships that the polling teams put up with when, taken by helicopter, they were landed in the hills far from Menyamya and had to make their way by foot through the villages back to that town.

Now, as to the other type of case, it was said in the Salford Election Petition[15] that the return by a Returning Officer is not to be lightly impeached. If the petition is based upon an independent act of bribery or intimidation as opposed to general bribery or intimidation, before such an election is set aside it should be proved to the entire satisfaction of the Judge — per Martin B. at p. 124. Willes J. said that the Judge before defeating an election should be very sure. He ought not to say very sure, but ought to be sure; he ought to have reasonable assurance that the ground was really made out. Northallerton Election Petition[16]. Both were cases decided at common law.

In Halsbury it is said that in such a case the Court should be satisfied "beyond all doubt", Vol. 14, 3rd ed., at p. 288. Similarly, "where an election has been properly conducted and where there is a single act of intimidation the court will require very strong evidence indeed before declaring such election void". Schofield on Parliamentary Elections at p. 400."

Bourne v Voeto[17] was a case dealing with complaints of undue influence at elections and because undue influence is a criminal offence, for the ground to succeed the petitioner must prove every element of that offence of undue influence beyond all reasonable doubt for the petition to succeed.

And if the Respondent relies on the illegal practices other than bribery and undue influence, whatever they maybe, he must satisfy to the entire satisfaction of the court sufficient number of votes enough to reverse the results of the election are affected in the allegation. But there must be clear evidence of this. Anything short of this is speculation and conjectures.

Where errors or omissions are alleged, there must be clear evidence of figures capable of showing that the result of the election is affected by the error or irregularity. The question then is, is it just that the candidate returned as elected be declared not duly elected or his election be declared void? We see no justification here where there is no evidence of the Applicant engaging in such irregularities or illegalities nor do we see any evidence of his servants or agents engaging in these illegal or unlawful activities with the knowledge and authority of the Applicant. There is complete lack or absence of such or any such evidence on record.

We find therefore that the application for judicial review must succeed because it has merits and we uphold the application and consequently:

Lawyers for the Applicant: Maladinas Lawyers
Lawyers for the Respondent: Amet Lawyers
Lawyers for the Electoral Commission: Nonggor & Associates Lawyers

Supreme Court of Papua New Guinea

Review Pursuant to Constitution Section 155(2)(b); Kopaol v Embel [2003] PGSC 23; SC727 (17 December 2003)