Amet v Yama [2010] PGSC 46; SC1064 (9 July 2010)

SC1064

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR 50 OF 2008

APPLICATION UNDER SECTION 155(2) (B) OF THE CONSTITUTION

AND:

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

BETWEEN:

SIR ARNOLD AMET
Applicant

AND:

PETER CHARLES YAMA
Respondent

Waigani: Salika, DCJ; Batari & Davani, JJ
2009: 25 February
2010: 09 July

PARLIAMENT - Elections - Disputed election petition - Election of Member of Parliament - Illegal practices - "Undue Influence" - Definition of - Standard of proof required –

NATIONAL PARLIAMENT - Election Petition - Pleading of facts under s. 208 (a) of the Organic Law on National and Local Level Government Elections –

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 – - Failure to exercise discretion to dismiss petition at preliminary hearing or trial– 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

Facts

Sir Arnold Amet (the applicant) was returned as the successful candidate for the Madang Regional Seat in the 2007 National Elections. Mr. Yama (the respondent) brought a petition in the National Court under the Organic Law on National and Local Level Government Elections (the Organic Law) in which the results of the election were declared void and a by-election ordered. The applicant has sought a review of the National Court decision. The basis of the Petition in the National Court was various statements made by supporters of the applicant and statements by the applicant said to amount to fraud or undue influence under the Criminal Code s102 and the Organic Law s215. The trial judge gave oral reasons and undertook to make written reasons available. The written reasons were not available at the time of the hearing of the review.

Per Salika DCJ and Batari J:

1. Having the right to appeal or review of a decision of the National Court necessarily comes with a right to be informed orally or in writing of the reasons for the decision;
   
2. A pronouncement by the Court falling short of giving reasons will inevitably lead to the conclusion that the Court or decision maker has no good reasons for the decision made;
   
3. Where a judge gives reasons and undertakes to give written reasons that publication should be available at the end of the proceedings or shortly thereafter;
   
4. The Supreme Court while reviewing the decision of the National Court is entitled to draw conclusions from the findings on the face of the record;
   
5. The issue of competency concerns the validity of the proceedings and can be raised at any stage of the proceedings (Davani J. to the same effect);
   
6. The reviewing court should not refuse to consider an issue of competency because it was not raised in the court below;
   
7. The petitioner in an election petition must set out the facts relied on to invalidate the election or return. Failure to do so will render the proceedings incompetent (Davani J to the same effect);
   
8. Under s215(3)(a) of the Organic Law:
   
   1. the " knowledge " or " authority " of the candidate as to any illegal act or undue influence is an essential element of the ground [51];
      
   2. it must be pleaded that the act relied upon was likely to affect the election result [51];
      
   100. it is helpful to plead the number of votes received by the winner and the runner-up to determine whether or not the result was likely to be affected [51];
        
   4. it is a requirement that the petition plead that it is just that the results of the election should be declared void;
      
9. To prove the allegation of undue influence under102(b) of the Criminal Code (read together with illegal practices under s215(3)(b) of the Organic Law) the petitioner must plead [56]:
   
   1. the ground relied upon and whether " force " or " fraud " was used to induce or restrain an elector from voting at the election;
      
   2. if fraud is relied upon it must be pleaded that " a false statement was made by a person to an elector known to be false or without belief in its truth or careless as to whether it be true or false, with the intention that the elector act on it ";
      
   100. the inducement or illegal practice of the winning candidate was likely to affect the election result;
        
   4. the number of votes secured by the winning candidate and the runner-up;
      
   5. it is just that the winner should be declared not duly elected; (Davani J to the same effect)
      
10. (per Davani J) undue influence and bribery (ss102 & 103) of the Criminal Code must be pleaded and proven as criminal offences;
    
11. Grounds 1-4 in the Petition were insufficiently pleaded and should not have gone to trial; (Davani J to the same effect)
    
12. Where the presence of the winning candidate is relied upon to prove " knowledge " or " authority " it must be alleged that the candidate was present with knowledge or approval of what his supporters would say [70]; (Davani J to the same effect)
    
13. The terms "knowledge" and " authority " must denote a pre-existing state of a candidate knowing or authorising an illegal act or undue influence on his behalf [71], It must be proven that the candidate wilfully encouraged the statement by his supporters [72];
    
14. The presence of a candidate where a statement was made is not by itself evidence that the candidate authorised or had knowledge of what the speaker was going to say;
    
15. There was no evidence of how the statements relied upon;
    
    1. influenced particular electors;
       
    2. how the whole election was likely to be affected by a statement to a small number of electors (Davani J to the same effect, and per Davani J sufficient material facts were not pleaded to demonstrate the likelihood or tendency to affect the results of the election);
       
    100. why declaring the election void was the only just remedy (Davani J to the same effect);
         
16. Orders (Davani J concurring):
    
    1. orders of the National Court set aside;
       
    2. the Petition EP 54 of 2007 dismissed;
       
    100. Responded to pay costs.
         

Cases Cited

Applicant by Herman Leahy (2006) SC855;
Application of Ludwig Shulze (1998) SC572; Application by Kasap and Yama [1988-89] PNGLR, 1971
Kalit v Pundari (1998) SC723;
Application by Agiwa (1993) SC442
Application by Ben Semri (2003) SC723.
Ombudsman Commission v Peter Yama (2004) SC747
Godfrey Niggints v Henry Tokam & 2 Ors [1993] PNGLR 66
Mission Asiki v Manasupe Zurenoc and the State, (2005) unreported, SC797
Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853
Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399
Holloway v Ivarato & Anor [1988] PNGLR, 99
Lambu v Ipatas (1997), N1701
Ephraim Apelis v Sir Julius Chan (1998) SC573
Okuk v Nickare [1983] PNGLR, 28
Mond v Mape & Ors (2003) N2318
Bourne v Voeto [1977] PNGLR 298
Agiru Aieni v Paul Tohian [1978] PNGLR 37
Ludger Mond v. Jeffrey Nape & Ors (2003) N2318
Agonia v Karo [1992] PNGLR 463
Karo v Kidu (Unreported N1626 of 9/10/97)
Koimanrea v Sumunda & Ors [2003] N 2421 (13 March 2003))
Delba Biri v. Bill Ginbogl Ninkama, the Electoral Commission of Papua New Guinea, Ben Bande and Bonoan Palume [1982] PNGLR 342
Steven Charles Pickthall v Lae Plumbing Pty Ltd [1994] PNGLR 363
PNGBC v Jeff Tole (2002) SC694

Legislations Cited

Constitution
National Court Rules
Organic Law on National and Local Level Government Elections (Amendment) Law 2006
Criminal Code
Supreme Court Act, 1975
Supreme Court Election Petition Review Rules 2002

Counsel:

Mr G J Shepherd with C Copland, for the Applicant
Mr P Ame, for the Respondent

09th July, 2010

1. SALIKA, DCJ and BATARI J: The Court of Disputed Returns in a successful dispute of Sir Arnold Amet's election declared the poll results invalid and ordered a By-Election for the Madang Regional Seat in the National Parliament. That decision is before this Court for review, the applicant having been granted leave to apply for judicial review in a decision by Injia, CJ.
   

BACKGROUND

2. Sir Arnold Amet and Mr. Peter Yama amongst many others contested the Madang Regional Seat in the National Parliament during the 2007 General Elections. Sir Arnold Amet was declared the winner. Mr. Yama came third after Jim Kas who was runner-up.
   
3. Mr. Yama contested the election results in an election petition claiming undue influence and illegal practices committed by the winning candidate and his supporters. He also alleged bribery, errors and omissions by electoral officials. The petition however, succeeded only on the grounds of "undue influence" and "illegal practice." The bribery claim was belatedly withdrawn while the allegations of electoral irregularities were dismissed.
   

Power of Review of National Court Decisions

4. The power of the Supreme Court to review all judicial acts of the National Court under Constitution s. 155 (2) (b) and O.16 of the National Court Rules is well settled in this jurisdiction. It extends to that which a person or party to a proceeding has no right of appeal. Election petition cases fall into this category of judicial review applications as there is no right of appeal under s. 220 of the Organic Law on National and Local Level Government Elections (Amendment) Law 2006 (the Organic Law.)
   
5. The inherent power of review of election petition matters is however available only where the applicant is able to demonstrate an important point of law that is not without merit to be determined: Applicant by Herman Leahy (2006) SC855; Application of Ludwig Shulze (1998) SC572; Application by Kasap and Yama [1988-89] PNGLR, 1971.
   
6. Where issues of facts are raised, this Court has held gross error must be clearly apparent or manifested on the face of the records before the Court should review: Application of Ludwig Shulze (supra); Kalit v Pundari (1998) SC723; Application by Agiwa (1993) SC442, or where the findings on the face of the records appears so outrageous or absurd, injustice inevitably resulted: Application by Ben Semri (2003) SC 723.
   

Amended Grounds of Petition

7. The amended grounds of the Petition tried in the court below is paraphrased and set out in brief as follows:
   

GROUND 1 – Alleged Statement by Nick Mare at Megiar Village:

7.1.1. "You all of Sungilbar continue to be out of your mind in choosing a man. The man you support had already contested the Sumkar Electorate and he contested the Usino Bundi and now he wants to contest the Madang Regional Seat. This man you support is a Highlands man. You must be out of your mind to support a Highlands man like him. You must vote for Amet a local man "Peter Yama is a Highlands man and if you vote for him and if he wins, Madang town will be taken over by the Highlanders".

7.1.2. Nick Mare made the statement in the presence of Arnold Amet to induce some 300-400 electors at Megiar village and neighboring villages to refrain from voting Peter Yama contrary to s.102 (b) of the Criminal Code.

7.1.3. Nick Mare committed illegal practice which, makes Arnold Amet's election void for the purposes of s. 215 of the Organic' Law on National Election and Local Level Government.

GROUND 2 – Alleged Statement by Sir Michael Somare at Bangepela Village in the Lower Ramu, Bogia Electorate, Madang Province:

7.2.1. "Don't vote for a man like Peter Yama. Peter Yama is a thief and he cannot change Madang Province and the Party he has set up cannot change Papua New Guinea. Vote for National Alliance man Arnold Amet for the Madang Regional Seat".

7.2.2 Michael Somare knew Peter Yama was not a thief. He made the statement knowingly to induce some 3,000 electors present at Bangepela village political rally not to vote for Peter Yama and to vote for Arnold Amet.

7.2.3 Many electors had wanted to vote for Peter Yama but because the Prime Minister made that statement, they believed him and voted for Arnold Amet.

7.2.4 Sir Michael Somare made the statement in Sir Arnold Amet's presence.

7.2.5 Sir Michael Somare's statement amounted to "induce" (sic) influence pursuant to s.102(b) of the Criminal Code an offence under s.201 of the Organic Law on National and Local Level Government Council.

GROUND 3 & 4 – Alleged statements by Arnold Amet on Karkar Island:

7.3.1 At Kevasop village, Arnold Amet told 300-400 electors: "You people of Kevasop should not vote for leaders who have 2 or 3 wives".

7.3.2 Arnold Amet was referring to Peter Yama and that he intended that the electors at Kevasop refrain from voting for Peter Yama because he has more than one wife and not a good leader.

7.3.3 The statement by Arnold Amet amounted to undue influence under s. 102(b) of the Criminal Code and because he is a successful candidate, his election should be declared void.

7.4.1 At Bangme Village, Arnold Amet told some 300 electors: "You people want to vote for Leader must look properly and vote. Don't vote for Leaders who have 2 to 3 wives."

7.4.2 Many Karkar Islanders present knew Sir Arnold Amet was referring to Peter Yama. As the former Chief Justice, Arnold Amet was a person highly regarded by Karkar islanders and they believed in him and did not vote for Peter Yama.

7.4.3 Arnold Amet knew that persons with more than one wife can become members of Parliament yet he made the statement to induce the electors to refrain from voting Peter Yama.

7.4.4 The statement was intended to induce influence under s. 102(b) of the Criminal Code and because Arnold Amet is successful his election should be declared void.

The Decision under Review

8. In a comprehensive and lengthy oral judgment, the trial judge gave several reasons for upholding the petition by Mr. Yama. His Honour also indicted on various aspects of the judgment, his full reasons would follow in writing. At the time of hearing, a written judgment had not been made available. It is also not part of the Review Book. Nor was it an issue at the hearing.
   
9. It goes without saying; the appellant or applicant in a judicial review application is entitled to the trial judge's reasons for decision. And the trial Judge has a duty to provide reasons for decision. The duty to give reasons is a necessary part of the duty of a public official to accord natural justice to persons affected by the decisions of those public officials. That duty is essential to the observance of the rules of natural justice as held in, Ombudsman Commission v Peter Yama (2004) SC747 (Injia DCJ (as he then was), Sakora & Sawong JJ).
   
10. If no reasons are stated, it will follow that the decision lacked any good reasons. In the case of Godfrey Niggints v Henry Tokam & 2 Ors [1993] PNGLR 66, Amet CJ (then) said at p 72:
    

"If no reasons are stated other than this kind of statement, it leaves the Court no option than to conclude that there was no good reasons at all. Public officials discharging public duties are required for public accountability to provide reasons for their actions and decisions. If their decisions affect substantial interests and welfare of other officers and their families, good management and common sense principles of fairness require that reasons be given."

11. In Mission Asiki v Manasupe Zurenoc and the State, (2005) unreported, SC797 the Supreme Court held, the first respondent's failure to give reasons means there was no good reasons. The Court also stated that, the failure to give reasons amounted to an error of law and a denial of natural justice.
    
12. We approve and apply the statement by Amet CJ in Godfrey Niggints v Henry Tokam & 2 Ors (supra) in the present review as a sound principle of law to guide the Appellate Courts in dealing with appeals and reviews that are without or lacking reasons or sufficient reasons for decision. The applicants as well as the respondents are entitled to the trial judge's reasons for decision. Having the right to appeal against or review of a decision of the National Court necessarily comes with it, the right to be informed orally or in writing, the reasons for decision. A pronouncement by the court falling short of given reasons will inevitably lead to a conclusion that the court or a decision making authority has no good reason for the decision made. That itself may be a ground to uphold the appeal or review because of error of law or denial of natural justice: Mission Asiki v Manasupe Zurenoc and the State.
    
13. In this case, it is not a situation of the trial Judge failing to provide reasons for his decision. He did that when handing down his decision in open court. He did not however, publish a written judgment which he undertook would set out finer details of his reasons.
    
14. With respect, where the trial judge undertakes to publish his reasons, the judgment ought to be made available to the parties at the end of the proceeding or soon thereafter. The parties are entitled to it, more so for the parties in an appeal or judicial review application. The written reasons for decision will assist them to consider whether to proceed with or to defend the appeal or review. It will also assist the Appellate Court when it deliberates the grounds of appeal or review. So, the reasons for decision whether oral or published are an integral part of the appeal and review process. Besides, providing the published reasons is essential for completion and completeness of the decision making process by a public official.
    
15. In our view, it is plain that the absence of the trial Judge's written verdict was and is not a critical factor at the hearing of this review application or its outcome. Nor does it alter the fact that the Review Book contains detailed oral reasons for decision which appears on pp. 756 to 781 of the Review Book. The parties did not take issue with that at the certification of the Review Book or at the hearing of this application both at the leave stage and this review hearing. They were content with the sufficiency of the oral decision to argue their cases.
    
16. If anyone is aggrieved by the lacked of detailed reasons, it would be the Applicant. He was the one driven from the judgment hall of justice by the decision of the trial Judge. Therefore, he is entitled in law to know the full reasons for the Court decision which was adverse to him and his interest.
    
17. The Applicant however does not take issue on this issue and quite appropriately too. Case authorities referred to suggest the absence of any further detail or clarification from a written judgment may operate in his favour. It is also clear, there is nothing lost to the hearing of this review because the court is entitled to make a decision based on the findings on the face of the records. Unavailability of a written judgment was and is not a bar to the hearing this review application.
    
18. Furthermore, an appeal to the Supreme Court is by way of rehearing on the evidence given in the court decision appealed against. Any lack or shortfall in a ruling or the decision appealed against is not left without remedy because of the power of the Supreme Court to make such orders as are appropriate under s. 16 of the Supreme Court Act, 1975. Section 16 reads:
    

"16. DECISION, ETC., ON APPEAL.

On the hearing of an appeal, the Supreme Court shall inquire into the matter and may–

(a) adjourn the hearing from time to time; or

(b) affirm, reverse or modify the judgement; or

(c) give such judgement as ought to have been given in the first instance; or

(d) remit the case in whole or in part for further hearing; or

(e) order a new trial."

19. Similarly in an election petition, the Supreme Court, while reviewing a decision of the court below on, "important points of law or where gross error is clearly apparent or manifested on the face of the records or where the findings on the face of the records appears so outrageous or absurd, injustice inevitably resulted," is entitled to draw conclusions from the findings on the face of the record. If the power of the court to remedy the situation is not founded on legislation as in s. 16 of the Supreme Court Act 1975, the Court in its inherent power under s. 155 (2)(b) and (4) of the Constitution may make such orders as are necessary to do justice in the circumstances of a particular case. In both situations, the outcome of the case would be decided on the findings on the face of the records.
    
20. In this case, the oral judgment forms the reasons for decision. The absence of a written judgment means there is no further addition or clarification and on some aspects of the oral judgment, there may be no good reason at all. And the lack of detailed reasons for decision may in itself be a ground to uphold the review.
    
21. In the upshot, neither party is disadvantaged by the absence of a written judgment in the hearing of this application. Besides, we are satisfied that what is on record reflects a comprehensive text of the court's reasons for decision. The adverse findings of facts against the Applicant can be summed up as:
    
    • Nick Mare made derogatory remarks that amounted to undue influence.
      
    • Sir Michael Somare made derogatory and sensitive remarks which, in the context of his status as Prime Minister with wide political and leadership influences, amounted to undue influence.
      
    • Sir Arnold Amet made derogatory remarks which, viewed together with his standing as former Chief Justice and his Christian beliefs, amounted to undue influence.
      
    • The statements made by Nick Mare, Sir Michael Somare and Sir Arnold Amet encroached upon and seriously affected the right of the petitioner to stand for elective public office in a free and fair democratic election process.
      
22. His Honour concluded on findings of those facts the applicant committed illegal practice and undue influence and the result was that the petition succeeded on grounds 1, 2, 3 and 4. His Honour's conclusions are found on pages 778 – 779 of the Review Book.
    

Applicant's Case

23. The applicant contends the trial judge erred when he accepted and ruled on pleadings that did not sufficiently comply with the requirements of s.208 of the Organic Law and were therefore incompetent. The second part of his contention is that, the evidence adduced at the trial did not establish the essential elements of 'undue influence' and 'illegal practice'. So, the trial judge erred in ruling that the statements by Nick Mare, Sir Michael Somare and his own statement amounted to undue influence and illegal practice.
    

Respondent's Case

24. The respondent in essence defended the amended grounds of the petition as being competent to have proceeded to trial. He further contends, the trial Judge had on sufficient evidence adduced, properly ruled the words uttered by Nick Mare, Sir Michael Somare and Sir Arnold Amet amounted to undue influence and illegal practice. Therefore, the applicant has failed to show serious questions of law, sufficient to disturb the decision of the trial court.
    

Issues

25. The Applicant raises 16 collateral and parallel issues for determination on this review. The full text is found in the judgment of her Honour, Justice Davani. The core issues can be stated as follows:
    
    • (i) Whether grounds 1, 2, 3 and 4 of the petition were competent to have proceeded to trial.
      
    • (ii) Whether the words spoken by Nick Mare, amounted to 'undue influence' within the meaning of s.102 (b) of the Criminal Code (the Code) and an 'illegal practice' within the meaning of s.215 (3)(a) of the Organic Law.
      
    • (iii) Whether the words spoken by Sir Michael Somare, amounted to 'undue influence' within the meaning of s.102 (b) of the Code and an 'illegal practice' within the meaning of s.215(3) (a) of the Organic Law.
      
    • (iv) Whether the words spoken by Sir Arnold Amet amounted to undue influence within the meaning of s.102 (b) of the Code.
      

Is the issue of competence properly before the Court for determination?

26. Mr Ame for the respondent contested at the outset, the propriety of raising competence of pleadings at this stage. He argued the trial Judge had correctly proceeded to trial on competent pleadings and made findings that are not in dispute. Counsel cited the observation by his Honour Injia, CJ on the leave application as supporting his contention. The relevant passage found at page 5 of the Review Book reads:
    

"The applicant does not take issue with any findings of fact. He only seeks to challenge the judge's decisions on points of law."

Determination of the issue raised.

27. The issue of competence is to do with legal and jurisdictional aspects of the court process. More often than not, this concerns the validity of the very proceedings before the court. Hence, it can be raised and determined at any stage of the proceedings. In, Chief Collector of Taxes v Bougainville Copper Limited and Bougainville Copper Limited v Chief Collector of Taxes (2007) SC853 the Supreme Court, adopting the principle in Patterson Lowa & Ors v Wapula Akipe & Ors [1992] PNGLR 399 made that clear when it held:
    

"It is settled law that, the Courts have an inherent jurisdiction to watch over their processes and procedures to ensure that they are not abused. This is an issue that is always open to the court at any stage of the proceedings. As such, it does not matter whether a party appearing before the Court is raising it, because it goes into the competence of the very proceedings brought before the Court."

28. The issues raised in this review concern procedural compliance with a provision of the Organic Law and the Criminal Code. The challenge also raises issues of facts pertaining to proof of the material facts. Whether these issues were raised in the court below or not is in our view, immaterial. Now that it is raised, this Court should not shun away from its primary duty to uphold the rule of law where the occasion to do so arises at any stage of the proceedings. The inherent power of the Court carries with it, the onerous responsibility to safeguard its processes and procedures against abuse.
    

29. The applicant claims in this review that, the respondent had not pleaded or sufficiently pleaded facts supporting 'undue influence' within the meaning of s. 102 (b) of the Code and 'illegal practice' within the meaning of s. 215 (3)(a) of the Organic Law. He further contends the evidence before the Court was void of proof of the essential elements of 'undue influence' and 'illegal practice.' These are matters pertinent to serious issues of law that are not without merit.

30. Hence, this review would not have gone past the leave stage without those considerations. From the same passage, Mr. Ame referred to, the Chief Justice also made it abundantly clear, the applicant must demonstrate, "the points of law raised in the proposed grounds of review pleaded in the application for leave raise important points of law which are (not) without merit. He must also demonstrate that the grounds raise serious issues of law and that they are likely to succeed at the substantive hearing if leave were granted."
    
31. Counsel's contention is clearly misconceived. It is dismissed.
    

The Law and Principles on Competence of Election Petition Pleadings

32. It is often stated the electoral process whereby a representative of the people is chosen in a free and fair electoral process conducted at great public expense and often under extreme conditions must be upheld, unless real cause can be shown that, that process should be overturned. It is presumed, the election process was properly and legitimately conducted and that electors have made their choices in the free exercise of their franchise. So, such a serious matter as to challenge a popular choice at the elections calls for clear and defined statements of the allegations relied on. This is the underlying principle of law behind s.208 of the Organic Law as averted to by the Supreme Court stated in Delba Biri v Bill Ninkama [1982] PNGLR 342 at p.345:
    

"...The Statute 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 prefers. 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."

33. Section 208 read together with s.210 is a strict compliance provision of the Organic Law. Section 208 reads:
    

"208. Requisites of petition.

A petition shall—

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

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

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

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

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

34. Section 210 reads:
    

"210. No proceedings unless requisites complied with.

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

35. These provisions dictate that the petitioner must set out the facts relied on to invalidate the election or return. Failure to do so will render the proceedings incompetent because of s. 210: Delba Biri v Bill Ninkama (supra); Ephraim Apelis v Sir Julius Chan (1998) SC573.
    
36. As to what facts ought to be set out under s. 208 and the rationale, the Supreme Court in Holloway v Ivarato & Anor [1988] PNGLR, 99, held:
    

"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, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to see with clarity the issues involved."

37. In Lambu v Ipatas (1997), N1701 Sakora J made these observations on the quality and extent of pleading an "illegal practice":
    

"In an election petition before the High Court of Australia (presided over by a single judge)following the 1993 Federal elections, alleging, inter alia, wrongful rejection of the petitioner's nomination constituting an "illegal practice" (on the part of the Electoral Commission), Dawson J held, inter alia, that:

'Even were the petitioner's allegation correct, that his nomination had been wrongly rejected, insufficient facts had been adduced to satisfy the court that the result of the election was likely to be affected by the "illegal practice" of wrongful rejection. In any event, relief was precluded on like grounds by the application of s.365 of the Act which excused certain errors or omissions of electoral officers: Sykes v. Australian Electoral Commission (supra, head note).'

Whilst the learned High Court justice was stating his conclusion following the adducing of evidence at the trial, I would respectfully adopt the statement as pertinent to our situation here, where sufficient and material facts are required to be pleaded to demonstrate the likelihood or tendency to affect the result of the election. In 1977, Frost CJ in the case of In re Menyamya Open Parliamentary Election, Neville Bourne v. Manasseh Voeto (supra) said that in illegal practices, the court should be satisfied that the result of the election was likely to be affected and that it is just that the election should be declared void."

38. The facts in Ephraim Apelis v Sir Julius Chan (1998) SC573 (Kapi, CJ Sheehan Akuram JJ) is more pertinent to the issue here. In a review application by Ephraim Apelis to strike out a petition by Sir Julius Chan, the Court concluded the pleading was seriously flawed in failing to plead that the conduct of the third party was done with the knowledge or authority of the winning candidate. The Court stated:
    

"Ground 10

This ground alleges undue influence of the part of the supporters, agents or servants of the applicant which affected the out come of the election result. The trial judge struck out grounds 10.2 and 10.3. However, he did not strike out ground 10.1. In his judgment, the trial judge dealt with this ground and stated:

'Ground 10 (or paragraph 10) of the petition alleges that there was undue influence committed by supporters, agents or servants of the first respondent. It has not been pleaded that any of this conduct was done with the first respondent's knowledge or authority (which if proved would result in the elect being voided).'

In our view, this was a serious flaw in the pleading of this ground. The trial judge ought to have concluded that the pleading as it stands does not constitute any valid ground for invalidating an election. It is clear from s. 215 (3)(a) of the Organic Law that the knowledge or authority of candidate as to any undue influence is an essential element of the ground. In our view the trial judge erred in not striking out this ground. This ground is struck out."

39. Those approved authoritative statements of the Supreme Court do not only confirm the mandatory compliance with the Organic Law, it also states the underlying need for that compliance.

Issue (i) - Whether grounds 1, 2, 3 and 4 were competent to have proceeded to trial.

40. This issue concerns the quality and adequacy of the amended pleadings in grounds 1, 2, 3 and 4 of the Petition. For convenience, we will deal with the issue of sufficiency of pleadings in these grounds together and aside from the issue of evidence.
    
41. In the court below, the Applicant objected to those grounds largely on peripheral issues pertaining to contents of the petition form. The trial judge with respect, quite correctly dismissed the grounds for objection as trivial at page 232 of the Review Book:
    

"With respect, the issues taken by Mr. Maguire were proper but with respect also my conclusion on the challenges was that in the end, they did not in any way constitute grounds that could lead to the striking out of the pleadings. And the main concern with respect ought to have been whether or not that facts were properly pleaded. And in that respect, I pause to note that s.208 (a) does not state plead, does not use the word plead..."

(Emphasis added)

42. The court was quite clearly alert to the legal prerequisite to properly plead the facts. That is for the petitioner to comply with the mandatory provision of s. 208 of the Organic Law by pleading material facts relied on to invalid an election or return. The court stated that requirement at pages 225 – 226:
    

"Now, I then embark on a quick discussion of the law on the mandatory nature of section 208, starting with the oft cited case of Delba Biri and Bill Nikama, I agree with counsel and all counsel were agreed, there is no question as to the authority of Biri and Ninkama and indeed of Holloway and Ivarato in relation to the mandatory nature of 208(a), and then (b), (c), (d) and (e). In Ivarato case, the court specifically defined what facts are to be pleaded and used the phrase 'material and relevant facts'. There is no question about that. And all of those sentiments of course had their origin in civil procedure, the purpose of pleadings, giving other parties notice of what it is that they should be answering to; prohibiting surprise at the trial so all of those, counsels are fully aware of and that is the whole purpose of 208(a).

The facts must be fully pleaded and material on relevant facts and in that decided case from Delba Biri onwards that we repeat in the National Courts and we repeat in the Supreme Courts these days say material and relevant facts, no pleading of evidence, no pleading of law, just facts. Evidence will come later and with respect in some situations some objections are quite unnecessary and unmeritorious because deliberately or through inadvertence lawyers want evidence before they go to trial. And that is prohibited by the law. And I have with respect had the occasion to make comments on those Supreme Court cases."

43. Having drawn his mind to those well trodden principles of pleadings of material facts, his Honour had no doubt concluded the pleadings of grounds 1, 2, 3 and 4 of the amended petition were in order because he proceeded to hear evidence on the allegations raised.
    
44. With respect, there are serious flaws in those pleadings which sought to invalidate the election of the Applicant on the grounds of illegal practice under s. 215 of the Organic Law and undue influence under s. 102 of the Criminal Code. The petitioner had relied on these different provisions of the law as forming the basis of illegal practice and undue influence. Both grounds were however, couched in the terms of s. 215 which reads:
    

"215. Voiding election for illegal practices.

(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

(2) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(3) The National Court shall not declare that a person returned as elected was not duly elected. or declare an election void—

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or

(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void."

45. Section 102 (b) of the Code makes 'undue influence' an offence punishable with a fine and in default, imprisonment. It reads:
    

"102. Undue influence.

A person who—

(a) ......

(b) by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election,

is guilty of a misdemeanour.

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year."

46. If a petitioner relies on, 'illegal practices' and 'undue influence', it is imperative that he pleads in clear, concise and in sufficient terms, the relevant facts on the essential requirements on the particular ground relied upon. The cases we have cited illustrate the need for relevant facts to be pleaded with precision and accuracy.
    

47. The underlying reason for asserting those facts with clarity, precision and sufficient details is so that the opposing party is properly and adequately informed to defend an alleged improper or illegal conduct. This will give him the opportunity to prepare his defence should he choose to contest the proceedings. Besides, it is necessary that the court is fully appraised to see with clarity, the issues to be tried: Holloway v. Ivarato (supra)

Whether Grounds 1 & 2 of the Petition were competent to proceed to trial

48. Grounds 1 and 2 alleged that Nick Mare and Sir Michael Somare made derogatory remarks against Peter Yama which amounted to illegal practice under s. 215 (3)(a) of the Organic Law. Nick Mare and Sir Michael Somare were supporters of the Applicant. The law requires in s. 215 (3)(a) that the undue influence by a third party must be committed with the knowledge or authority of the winning candidate.
    
49. It is apparent on the face of the records; the petitioner did not plead that any of the statements by Nick Mare and Sir Michael Somare was done with the knowledge or authority of Sir Arnold Amet which if proved, would result in the election being declared void. This Court made it clear in, Ephraim Apelis v Sir Julius Chan (supra) that under s.215 (3) (a), the "knowledge" or "authority" of the candidate as to any illegal act or undue influence is an essential element of this ground. Without this element, no election can be invalidated.
    
50. Section 215 (3)(a) further requires that the court must be satisfied, the result of the election was likely to be affected, and that it is just that the candidate should be declared not duly elected or that the election should be declared void. This is a stand alone provision a breach of which may result in the voiding of an election or return: Okuk v Nickare [1983] PNGLR, 28.
    
51. So, it must be pleaded that the illegal practice or conduct of a supporter, agent or servant with his knowledge or authority was likely to affect the election results. It will be helpful too to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or likely to be affected. The view expressed by Kandakasi, J in Mond v Mape & Ors (2003) N2318 is on point:
    

"It is clear from this that if a petition alleges an illegal practice or conduct other than bribery or undue influence of a winner of an election, the petitioner must plead that the conduct was likely to affect the election result and show that. To do that, it is necessary in my view, to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or would have been affected. This is in addition to pleading the facts constituting the conduct in question. A failure to do so would amount to a failure to meet the strict requirements under s.208 (a) and form the foundation for evidence to be led for a relief under s. 215 (3) (b). This is necessary because without the pleadings, no evidence can be led. After all, pleadings drive the evidence."

52. A further requirement under s. 215 (3)(a) is for the petition to plead that, it is just that the candidate should be declared void.
    
53. In this case, the petitioner did not plead those essential elements of illegal practice under s. 215 (3) (a). It was not asserted for proof, the election result was likely to be affected, and that it was just that the candidate should be declared not duly elected or that the election should be declared void. Without those elements, the grounds in 1 and 2 and where it applied to grounds 3 and 4 of the petition were not competent to be tried.
    
54. In the upshot, the trial Judge having quite correctly drawn his mind to the mandatory requirement of proper pleading of facts and materials on relevant facts under s.208 of the Organic Law, erred in proceeding on a trial on pleadings which did not constitute any valid ground for invalidating an election or return. Those grounds are struck out.
    

Whether Grounds 3 & 4 of the Petition were competent to proceed to trial.

55. Grounds 3 and 4 relate to words spoken by the applicant. The allegations were that, Sir Arnold Amet committed an illegal practice and undue influence on two occasions during campaign. On the first occasion, it was alleged he told his audience at Kevasop village not to vote for leaders who have 2 or 3 wives. He was alleged to have similarly told his campaign rally on the second occasion, "You people want to vote for leader must look properly and vote. Do not vote for leaders who have 2 to 3 wives." It was pleaded that Sir Arnold Amet committed an undue influence, a criminal offence under s. 102 (b) of the Code.
    
56. To prove the allegations of under influence under s. 102 (b) of the Code, (read together with an illegal practice under s. 215 (3)(b) of the Organic Law), the petitioner must plead in clear, concise and sufficient terms:
    
    • (i) The particular ground relied on and whether under s. 102 (b), the winning candidate (Sir Arnold Amet) used force or fraud to induce or refrain an elector from voting at the election.
      
    • (ii) If fraud is relied upon, it must be further pleaded that, "a false statement was made by a person to an elector, known to be false or without belief in its truth or careless whether it be true or false, with the intention that the elector should act on": Bourne v Voeto [1977] PNGLR 298 at 303.
      
    • (iii) The inducement or illegal practice by the winning candidate was likely to affect the election results and show the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or would have been affected.
      
    • (iv) It is just that the candidate should be declared not duly elected or that the election should be declared void.
      
57. We have reviewed the pleadings set out in grounds 3 and 4 of the amended Petition. The facts constituting the alleged illegal act were pleaded. However, those additional facts we have alluded to touching the essential elements of undue influence under s 102 of the Code and illegal act under s. 215 (3)(b) of the Organic Law were not pleaded in any way or form.
    
58. The oversight in pleading those material facts was and is in serious breach of s. 208 of the Organic Law as well as settled principles of law on proper pleading of facts in an election petition. The trial judge clearly erred in proceeding on trial on pleadings that did not constitute any valid ground for invalidating an election.
    
59. For these reasons and for the same reasons expressed in relation to grounds 1 and 2, we will dismiss grounds 3 and 4 of the petition. Consequently, we will uphold this review application and quash the Orders of the court below.
    

Issues (ii) &(iii): Whether the trial judge erred in law in his judgment that the words spoken by Nick Mare & Sir Michael Somare amounted to 'undue influence' within the meaning of s.102 (b) of the Criminal Code and an 'illegal practice' within the meaning of s.215 (3)(a) of the Organic Law.

60. We will for convenience, deal with the issues arising from the statements uttered by Nick Mare and the Prime Minister, together.
    

61. In an Election petition, the onus and standard of proof of assertions of an illegal practice contrary to s.215(3)(a) of the Organic Law and undue influence contrary to s.102(b) of the Code is well settled in this jurisdiction. It was first held in the case of Neville Bourne v Voeto [1977] PNG 296 that, the standard of proof required is such that the Court should require clear and cogent proof so as to induce on the balance of probabilities, an actual persuation of the mind or to the entire satisfaction of the Court, the materials asserted for proof. The trial judge averted to that principle at pages 763 – 764 as follows:

"This is in relation to the onus and standard of proof and it only requires me to emphasise that he who alleges or accuses must prove that allegation or accusation, putting it simply. So the burden, a very onerous burden because of the constitutional nature of this challenge to the election and its return – it is an onerous burden and the petitioner carries that burden to prove to the satisfaction of the court his allegations, his complaints. It is not a light matter; once again because of the seriousness and importance. An election has taken place, somebody has been returned and there is as the Constitution allows a challenge to that election and return. So it is not a light matter; it is not something that is trivial; it is not a matter for vexatious carrying on as it were after the elections.

This burden, this onus has to be discharged also at a very high level. It is not a matter of just accusing somebody or complaining about somebody or alleging impropriety on the part of somebody and going away, you have to stand and prove your allegation, your complaint to the highest degree that the law through case law recognizes and insists upon, a matter which counsel quite properly adverted to and basically repeating the law which I am also doing here. And the law with respect in relation to onus and standard of proof is, as first expressed in this type of cases by the late Chief Justice Sir Sydney Frost in the oft cited case of in Re Menyamya Open Parliamentary Elections, that is, Neville Bourne and Voeto which case features prominently in the allegations that were brought before me here."

62. His Honour found that the statements were made by the applicant and his supporters as alleged on grounds 1, 2, 3 and 4 of the Petition. The court quite correctly also sounded caution against acting on insufficient evidence at p.774:
    

"I say in my judgment that just because I make eventual findings of fact out of the obviously conflicting evidence before me and that these findings are in favour of the petition party does not necessarily and automatically mean or follow that a particular ground, the aggrieved petitioner relies on to have the election and return declared void has been made out for such a result.

Needless to say, the court must determine in the usual judicial methodology of looking at things like these; conflicting evidence put before the court, disputing – the court must determine in the end that particular ground of complaint or grievance are and see whether it has been made out as the law requires so that the invalidating or the nullifying effect that the petitioner seeks can properly be granted. Once again, the established requirements of law must demonstrate to have been – must be demonstrated rather to have been fulfilled, satisfied for the legal consequences or the reliefs that are sought."

63. In relation to the statement uttered by Sir Michael Somare his Honour stated at p.773:
    

"The potential for doing harm, was it real or was it just imagined? And in my respectful opinion such statements or speeches can be regionally or ethnically, be incendiary, the tendency to encourage disunity, encourage tribalism. Pandering to as I describe with respect, bigotry and relying on difference and tribalism, ethnicity to give vehicle to this way.

And I with respect characterised it as also being insensitive looking at the nation as a whole, insensitive to the inflammatory nature of tribal allegiances. We have enough problems in urban areas caused by one factor or another for civil unrest to erupt in a short space of time. We do not with respect need our leaders to be fuelling this through speeches that are made. If only made for political reasons, the effect is the same in my respectful opinion. So insensitivity there, when we talk about one flag, one nation, forging a coalition of people from disparate tribal and regional groupings and I make mention of with respect under such circumstances the fragility of tribal enmities. I think with respect we witness this everyday in the urban areas; as I said for one reason or another the fragility of unity that we have in PNG.

It is appreciated that the statement was made in the cut and thrust of political campaigning but in the end because of the fragile nature of our unity, they can have – they have the potential for explosive consequences."

64. And at p.778 - 779 his Honour concluded:
    

In the end result, applying the law firstly in relation to undue influence and illegal practices, s.102(b) of the Criminal Code; not (a) but (b) would be the pertinent provision and going to s.215 as the consequence of a finding, I have reached conclusions in relation to those four allegations contained in ground 1, 2, 3 and 4 in relation to public statements, speeches, utterances that were objected to. Illegal practices, just adverted to a while ago in the light of the law as stated and applicable and attempting to apply the law to evidence, if any reach a conclusion that I shall announce now.

And that is that in relation to the allegations contained in grounds 1 to 4 inclusive, I find firstly that those statements were made. I am satisfied and I accepted the evidence of witnesses called on behalf of the petitioner; I found them as being said – I should note 1 and 2 were the more problematic ones whereas 3 and 4, Sir Arnold readily acknowledged making those statements with biblical text support. So with respect paragraphs 3 and 4 did not pose as much difficulty in relation to convincing credible admissible evidence than 1 and 2."

65. With respect, we agree entirely with his Honour's sentiments over the behavior of Sir Michael Somare and political leaders at the elections and generally. However, having reviewed the transcript of proceedings, the conclusions reached by the trial judge are not supported by evidence. It was against the weight of the evidence on a number of aspects as we will shortly demonstrate.
    
66. Accepting that the statements uttered by Nick Mare and the Prime Minister amounted to illegal practice, it is a further requirement under s.215(3)(a) of the Organic Law, the petitioner must assert and prove that the illegal practice was committed by a third party with the knowledge or authority of the candidate. That is the legal requirement the petitioner must satisfy.
    
67. We agree with Mr Sheppard's submissions that there is firstly no assertion in the petition that the two men made the statements with the knowledge and authority of Sir Arnold Amet. Second, no evidence was adduced on this aspect and third the trial judge did not say, whether the two men committed illegal practices with the applicant's knowledge or authority.
    
68. In his submissions, Mr Ame argued that, the applicant's knowledge or authority can be inferred from his presence. He said Sir Arnold Amet was present and heard what was uttered by each of his supporters. He did nothing to disassociate himself from their statements. Inferentially, the applicant had thereby, acquiesced to his supporters' illegal acts.
    

Whether the Applicant's "presence" amounted to "knowledge" and "authority"

69. We have difficulty accepting Mr. Ame's contention for the same reasons as stated earlier in paragraph 67. Furthermore, being present at a particular place and time when statements were uttered by Nick Mare and Sir Michael Somare, it does not necessarily follow that the applicant had prior knowledge of what was going to be said or authorized the statement.
    
70. In our view, to plead "presence" for the purpose of s. 208 of the Organic Law, it must also be asserted for proof that "presence," was willed in furtherance of a common objective. Wilful presence must be strictly proved before liability attaches. The petitioner must assert and prove that, the Applicant was present with the knowledge of what his supporters would say or that he authorized the statements. As to the meaning of knowledge and authority we gain some assistance from the ordinary usage of those terms. The Concise Oxford Dictionary defines 'knowledge' as, "knowing, familiarity gained by experience (of person, thing, fact); person's range of information....".
    
71. Hence, 'knowledge' connotes the state of knowing, or what one knows. The term 'authority' on the other hand is defined as, "Power or right to enforce obedience; delegated power... body having authority; personal influence, esp. over opinion; weight of testimony..." This implies power, given by a person's position or office, to give commands or delegate a function and enforce obedience.
    
72. The terms 'knowledge' and 'authority' must necessarily denote a pre-existing state of knowing or authorizing an illegal practice or acts of undue influence. The knowledge of the illegal act or undue influence must be present prior to and at the time of occurrence of the illegal act or undue influence. Similarly, the candidate prior to the event must have given or delegated a supporter, agent or servant authority to commit an illegal act or undue influence on his behalf.
    
73. Both situations may involve some element of planning or fraud manifesting itself in the presence of the all the principal offenders. The petitioner must not only assert presence, but he must also adduce evidence to show that the presence of the principals was willed to aid and abet or encourage the illegal practice and undue influence. Because of the criminal elements of the charges of illegal practice and undue influence, it is not enough that the presence of the applicant has in fact given encouragement. The Petitioner must show that, the applicant intended to give encouragement and that the applicant wilfully encouraged the statements of by his supporters: Agiru Aieni v Paul Tohian [1978] PNGLR 37.
    
74. Whilst it is proved that Nick Mare and Sir Michael Somare uttered statements in the presence of the applicant, there is no evidence the applicant had prior knowledge of what each speaker was going to say or that he did authorize the statements. Nor did the presence of the applicant go far to prove he had knowledge or authorized the statements. And the trial judge made no findings on whether the statement was made with the knowledge or authority of the applicant.
    
75. Besides, there are other essential matters requiring proof under s. 215 (3)(a) of the Organic Law which with respect, were overlooked by the trial judge. There is nothing on the face of the record which establishes or demonstrates -
    
    • how the statements uttered by Nick Mare and the Prime Minister influenced those particular electors who heard the statements.
      
    • how the result of the election involving the whole voting population of Madang Province was likely to be affected by statement made to a small number of electors in a particular village location.
      
    • whether declaring the whole election void was the only just remedy warranted in the circumstances.
      
76. There is not an iota of evidence or findings on any of those matters. The trial judge did not say whether he made any findings on those matters and how he dealt with the issues. Further the trial judge did not consider whether the words spoken were defamatory within the meaning of s.201 of the Organic Law and how that was likely to affect the election result.
    
77. Given the high standard required to prove an illegal act, the evidence clearly fell short of meeting the legal requirement of proof. We conclude that the trial judge erred in his findings in the absence of material facts that the alleged illegal practice and undue influence were sustained on the evidence.
    

Whether the trial judge erred in law in his judgment that the words spoken by Sir Arnold Amet as pleaded in grounds 3 & 4 of the petition amounted to undue influence within the meaning of s.102 of the Code.

78. The trial judge's findings and assessment of the statements by the Applicant appears on pages 770 - 772 of the Review Book. We set this out in full for completeness.
    

"Ground 3 is in relation to the speech that Sir Arnold himself made at Kevasop village on Karkar on 3 July. And as I said Sir Arnold did not deny making that statement but he explained in the context of voters choosing proper leaders, ethical leaders, who would have the interest of the people at heart rather than selfish interest and it was his evidence that it was said in that context and that statement was in relation to urging of voters not to vote for some people who had more than one wife. And of course it was well known in the electorate, if not the country that Mr Yama was polygamous in that sense and that Sir Arnold's direct reference to biblical text in support was in relation to that in the context of selecting good and ethical leaders so they do the job of properly representing the people rather than themselves.

In relation to that speech and reference to the biblical text, I have made some comments but by way of summary – excuse me for a moment – note the biblical origin of that statement in the context that Sir Arnold put and also note the matters that I adverted to already and more particularly s.50 and 103 of the Constitution in relation to what are limitations on the exercise of the right granted by the Constitution and the Constitutional provisions list the factors of disqualification.

And in that context counsel for the petitioner put to Sir Arnold whether or not having more than one wife was prohibited by either section 50 provision or section 103 provision and of course Sir Arnold quite properly and correctly said, no.

Now, in my discussions on that aspect of the evidence I made reference to biblical luminaries, more particularly in the Old Testament who had concubines, more than one wife. Biblical luminaries such as Abraham, King David, Solomon, it will be recalled by Christians that God considered King David, a man to his heart or was close to his heard although King David had plenty of concubines.

Of course, closer at home, polygamy is part of the traditional customs of Papua New Guinea and practised today despite attempts by missionary and colonial government authorities to stamp it out, it is practised today. Counsel Dr Nonggorr suggested he has got a brother who might be polygamous. I think most of us, if not most, some of us would have somebody in our family who would be polygamous. I have an old uncle who is polygamous. He got thrown out of the Church of England but that was the only penalty he suffered.

But those have nothing to do with the right that is given by the Constitution under s.50. Considering the allegations contained in that ground and the other ground that was of similar objection taken, that is at Sir Arnold's own village, the question was what effect such a statement, reliance on biblical text prohibiting such a relationship would have on with respect uninformed and uninitiated ordinary Papua New Guineans who have not got the benefit of education, let alone legal education being told in the way that Sir Arnold did in relation to selection of candidates for representation. And needless to say that the high respect accorded to Sir Arnold because of the constitutional offices held before contesting parliament, legal education, holding judicial posts, no lesser position than the highest judicial post of the country.

So no problems about expecting close intimate associate with law and procedure. What is legal, what is not, et cetera. So in that context what would the effect of such a statement have on ordinary voters? Ordinary voters I hasten to add through no fault of theirs have not had the benefit of such education and experience so that they can make informed decisions as to the calibre of the candidates who present themselves to them. And these are the allegations concerning s.102 of the Criminal Code Act, undue influence. And in my judgement I look at the dictionary definitions of what undue influence is; what is influence and what is undue influence and in the context of a voter exercising his right under the Constitution to select somebody to represent him at the highest political forum of the country. Is that voter exercising a right that is envisaged by s.50 of the Constitution.

So those are pertinent considerations and of course all counsel and Sir Arnold assisted the court greatly by referring to and re-emphasising the law on what is or what is not undue influence in the context of exercising your right under s.50. And in my judgement I make quick references to the origin of the phrase "undue influence" and with respect it originates from English Law dealing with testamentary statements, wills, contracts, where the important consideration is that one who is going to be involved in and make oneself subject to the terms of a contract; is that person going to that contract, enter into that contract with open unhindered, uninfluenced or unduly influenced mind? All of those considerations boiling down to the question; did he exercise freewill to enter into the contract or in relation to the making of wills, did he exercise freewill when he was making the terms of his will benefiting one person as against the other or was his mind, his will overborne by external forces to the concept of free exercise.

And that is what has been imported into the Criminal Law and from there, from s.102 of the Criminal Code into the Organic Law extended to s.215 of the Organic Law, undue influence constituting a situation where the winner, if the allegation is proven or established by proper admissible evidence, having his election voided, declared null and void. So I, with the assistance of counsel in relation to cases within the jurisdiction have also sought assistance from the ancestry of that phrase because it just did not fall out from the sky and we have to trace back where it came from and for what purpose? So it has to do with the exercise of freewill in an important matter such as elections."

79. The applicant does not deny telling electors not to vote for persons with 2 or 3 wives. The trial judge found that the respondent was polygamous and this was a known fact to the local electors. The respondent also admitted he had three wives. The applicant therefore stated what was true.
    
80. He explained that he made the statement in the context of his Christian belief. Sir Arnold also referred to the Constitutional Preamble declaring Papua New Guinea a Christian country and the practice of Christian belief apparent or manifested in the conduct open Church services and prayers by many high institutions including the National Parliament and the National Judiciary. He submitted that, it is not inappropriate for Christian leaders to encourage and instruct the people on the kinds of values and standards of good ethical and moral leadership qualities in electing or appointing their leaders.
    
81. The trial Judge however, dismissed the applicant's explanation preferring the liberal approach that, polygamy is well accepted practice in civil societies having its origins in Biblical times and cultural settings in many places in Papua New Guinea. We do not take issue with his Honour's reasoning on that aspect. The court went on to pose the pertinent question; what was the effect of the statements made in the light of Sir Arnold's moral beliefs and his status as former Chief Justice of Papua New Guinea on ordinary voters? His Honour concluded the statements spoken in the circumstances affected the free will of the ordinary voter exercising his right under s. 50 of the Constitution. Hence, the statements amounted to undue influence under s. 102 of the Criminal Code.
    
82. The pleadings in grounds 3 and 4 of the petition had alleged that the statements uttered by Sir Arnold amounted to undue influence under s.102 (b) of the Criminal Code. In order to constitute "undue influence," the petitioner must show the winning candidate prevented or obstructed the free exercise of the franchise by an elector by fraud or force. The element of fraud is applicable here. So, there must be proof on the criminal standard that the statements uttered by the applicant constituted fraud: Bourne v Voeto [1977] PNGLR 298. It is apparent from the face of the records and the observations we have made that, the trial judge did not make any clear findings on the element of fraud.
    
83. Besides, His Honour did not consider the legal and constitutional implications of whether the utterance of a true statement in a public political campaign gathering amounts to commission of fraud within the meaning of s.102 (b) of the Criminal Code. Nor did his Honour consider whether the true statement was intended to commit fraud on electors who heard the statement in terms of actually unduly influencing them in the free right to vote.
    
84. The failure to assert and prove the element of fraud in allegations of undue influence and illegal practice is sufficient to show misapprehension of facts and misapplication of law. Therefore, we find gross error clearly apparent or manifested on the face of the records. The error is in our view, sufficient to disturb the findings and orders of the court below.
    

Conclusion

85. In the end result, the Applicant has clearly demonstrated in this review application, serious flaws in the application of the law as well as the findings of facts. We would uphold the review and quash the decision of the court below.
    

Orders

86. We will make the following orders:
    

1. Review Application is upheld;

2. Orders of the 11th September, 2008 in EP No. 54 of 2007 is quashed;

3. The Petition in EP No. 54 of 2007 be dismissed

4. The costs of this Application and the National Court proceedings will follow the event.

87. DAVANI .J: Before the Court is an application by Sir Arnold Amet (the 'applicant') for a Review in the Supreme Court under s.155(2)(b) of the Constitution, of a decision of the National Court sitting as a Court of disputed returns in the matter of an Election Petition (the 'Petition') filed by Peter Charles Yama (the 'respondent') contesting the results of the election for the Madang Regional Seat for the 2007 National Election.

88. We also heard an application by Mr. Ame for the respondent, seeking to dismiss the applicant's Review and on which he relied on several grounds. On 24th February, 2009, we dismissed the application by Mr Ame and proceeded to deal with the matter now before us.

Facts

89. The applicant was the declared winner in the 2007 National Elections for the Madang Regional Electorate.

90. The respondent filed an Amended Petition in the National Court under proceedings EP 54 of 2007, ('the Petition'), claiming, inter alia, undue influence by the applicant and others, bribery by the applicant and errors and omissions by the Electoral Commission. The respondent withdrew the grounds alleging bribery.

91. The Trial Judge delivered his decision on 11th September, 2008. The grounds of undue influence were upheld and the grounds of error and omissions by the Electoral Commission were dismissed.

92. To date, the Trial Judge has yet to deliver a written decision giving reasons. However, his extensive verbal summary is set out in the Court transcripts, which the Chief Justice relied on when granting leave to review and on which we also rely.

93. The applicant is aggrieved by that decision. S.220 of the Organic Law on National and Local-Level Government Elections (the 'OLNLGE') deems the decision of the National Court to be final. The only avenue available for a review of the decision of the National Court is the review procedure under s.155(2)(b) of the Constitution. The applicant filed such an Application pursuant to the Supreme Court Election Petition Review Rules 2002 (as amended) (the 'Rules') on 20th November, 2008.

94. Leave to apply for review was granted on 7th November, 2008 by His Honour Chief Justice Sir Salamo Injia. In his published reasons, His Honour found that all the proposed grounds of review raise important points of law and are not without merit. He found that they raise serious procedural and legal issues firstly about the correctness and sufficiency of the pleadings of relevant facts as required by s.208(a) of the OLNLGE with reference to the requirements of s.215(3) of the OLNLGE and s.102(b) of the Criminal Code. His Honour said further at pg.21 of his published reasons;

"Secondly, they raise serious questions about the application of relevant constitutional provisions to the proven facts and the judge's failure to reach correct conclusion on points of law or reaching conclusions which on the face of them are incorrect or mistaken. Thirdly, they also raise serious issues of constitutional law founded on the principles of democratic government based on free speech and public debate in the democratic process of electing good leaders enshrined in the Constitution. If these grounds are upheld on a full review, the review is likely to succeed".

His Honour ordered as follows:

1. The applicant is granted leave to apply for judicial review of the decision of National Court made on 11th September 2008 inclusive of preliminary rulings on objection to competency of the petition made in the course of the trial proceedings.

2. Costs of the application shall be in the cause of the substantive application for review.

The significance of this ruling will be discussed later below.

95. The Orders of 11th September, 2008, sought to be reviewed are;

Order no. 1

That the Petition succeeds on Ground 1 on the basis that Nick Mare committed undue influence.

Order no. 2

That the Petition succeeds on Ground 2 on the basis that Sir Michael Somare committed undue influence.

Order nos. 3 and 4

That the Petition succeeds on Grounds 3 and 4 on the basis that the applicant committed undue influence.

Grounds for review

96. The grounds for review are those pleaded in the Application for Review to the Supreme Court dated 20th November, 2008 and filed by Young & Williams Lawyers. I have not set out the grounds because my brothers Salika, DCJ and Batari, J have done that. I only summarise these grounds, with emphasis on the requirements and elements at law which must be satisfied before the Review can succeed. I have also italicized these important elements that should have been pleaded and proven. These are;

Ground 1

(i) The trial judge erred in law in ruling that the Petition succeeds on Ground 1 on the basis that Nick Mare committed undue influence when;

(a) Ground 1 of the Petition, as amended, did not sufficiently comply with the requirements of s.208(a) of the OLNLGE; and

(b) is therefore incompetent.

(ii) The Trial Judge erred in law in his judgment that the statement by Nick Mare amounted to undue influence contrary to s.102(b) of the Criminal Code.

(iii) The Trial Judge erred in law in his judgment that the statement by Nick Mare amounted to an illegal practice within the meaning of s.215(3)(a) of the OLNLGE.

(iv) The Trial Judge erred in law in his judgment that the applicant's election should be declared void when this ground of the Petition did not plead that the words spoken by Nick Mare, were with the applicant's knowledge or authority.

(v) The Trial Judge erred in law in his judgment that the applicant's election should be declared void when no evidence was led to demonstrate that the words spoken by Nick Mare were with the applicant's knowledge or authority.

(vi) The Trial Judge erred in law in his judgment that the applicant's election should be declared void when this ground of the Petition did not plead, that as a result of the words spoken by Nick Mare, 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.

(vii) The Trial Judge erred in law in his judgment that the applicant's election should be declared void when the petitioner did not lead any evidence and there was no evidence that the result of the election was likely to be affected.

(viii) The Trial Judge erred in law in his judgment that the applicant's election should be declared void when the respondent did not lead any evidence at the trial that it is just that the applicant should be declared not to be duly elected or that the election should be declared void.

Ground 2

(i) The Trial Judge erred in law in ruling that the Petition succeeds on Ground 2 on the basis that Sir Michael Somare committed undue influence when;

• (a) Ground 2 of the Petition, as amended, did not sufficiently comply with the requirements of s.208 of the OLNLGE; and
  
• (b) Ground 2 did not plead the facts necessary to satisfy the Court of the requirements of s.215(3)(a) of the OLNLGE; and
  
• (c) Consequently, Ground 2 was therefore not competent.
  

(ii) The Trial Judge erred in law in his judgment that Sir Michael Somare's statement amounted to undue influence pursuant to s.102(b) of the Criminal Code.

(iii) The Trial Judge erred in law in ruling that the applicant's election should be declared void on the basis of the words spoken by Sir Michael Somare when the Petition did not plead that the words were spoken with the applicant's knowledge or authority.

(iv) The Trial Judge erred in law in ruling that the applicant's election should be declared void on the basis of the words spoken by Sir Michael Somare when the respondent did not lead any evidence and there was no evidence at the trial that the words spoken by Sir Michael Somare were with the applicant's knowledge or authority.

(v) The Trial Judge erred in law in ruling that the applicant's election should be declared void on the basis of the words spoken by Sir Michael Somare when the Petition did not plead that the result of the election was likely to be affected.

(vi) The Trial Judge erred in law in ruling that the applicant's election should be declared void on the basis of the words spoken by Sir Michael Somare when the respondent did not lead any evidence and there was no evidence at the trial that the result of the election was likely to be affected.

(vii) The Trial Judge erred in law in ruling that the applicant's election should be declared void on the basis of the words spoken by Sir Michael Somare when the Petition did not plead that it is just that the applicant should be declared not to be duly elected or that the election should be declared void.

(viii) The Trial Judge erred in law in ruling that the applicant's election should be declared void on the basis of the words spoken by Sir Michael Somare when the respondent did not lead any evidence and there was no evidence at the trial that it is just that the applicant should be declared not to be duly elected or that the election should be declared void.

Grounds 3 and 4

The Trial Judge erred in law in ruling that the Petition succeeds on Grounds 3 and 4 on the basis that the words spoken by the applicant amounted to undue influence, when;

(i) Grounds 3 and 4 in the amended Petition did not sufficiently comply with the requirements of s.208(a) of the OLNLGE in that those grounds, failed to plead the provisions of the OLNLGE that it was alleged the words contravened and consequently, Grounds 3 and 4 of the Petition, as amended, were incompetent.

(ii) The Trial Judge erred in law in his judgment that the words spoken by the applicant, amounted to undue influence, within the meaning of s.102(b) of the Criminal Code when the words were spoken in the context of the Biblical Christian principles of good, moral and ethical leadership from the Epistle of First Timothy 3:1-7.

(iii) The Trial Judge erred in law in his judgment that the words spoken by the applicant amounted to undue influence within the meaning of s.102(b) of the Criminal Code when the words were spoken in the context of the Biblical Christian principles of good, moral and ethical leadership from the Epistle of First Timothy 3:1-7, consistent with the national pledge in the Preamble to the Constitution.

(iv) The Trial Judge erred in law in his judgment that the words by the applicant, amounted to undue influence in that the judgment is inconsistent with the constitutional pledge to guard and pass on those who come later, the Christian principles that are now enshrined in the Preamble to the PNG Constitution.

Issues

97. The issues put to us by the applicant are very relevant to the proper determination of this application. I set them out below. I discuss these issues when I discuss the grounds of the amended petition, and at the same time, drawing conclusions on all the issues.

98. The issues are;

(1) Whether grounds 1, 2, 3 and 4 of the Petition, were competent to have proceeded to trial?

(2) Whether the words spoken by Nick Mare, amounted to undue influence within the meaning of s.102(b) of the Criminal Code?

(3) Whether words spoken by Nick Mare, amounted to an illegal practice within the meaning of s.215(3)(a) of the OLNLGE?

(4) Whether the words spoken by Nick Mare, if it amounted to an illegal practice, was with the applicant's knowledge or authority?

(5) Whether the words spoken by Nick Mare, if it amounted to an illegal practice, and uttered without the applicant's knowledge, would have been likely to affect the results of the election, that it is just that the applicant should be declared not to be duly elected or that the election should be declared void?

(6) Whether the Trial Judge erred in law in his judgment that the words spoken by Nick Mare, amounted to undue influence within the meaning of s.102(b) of the Criminal Code and an illegal practice within the meaning of s.215(3)(a) of the OLNLGE?

(7) Whether the Trial Judge erred in law in upholding the Petition on ground 1?

(8) Whether the words spoken by Sir Michael Somare, amounted to undue influence within the meaning of s.102(b) of the Criminal Code and an illegal practice within the meaning of s.215(3)(a) of the OLNLGE?

(9) Whether the words spoken by Sir Michael Somare were with the applicant's knowledge or authority?

(10) Whether the words spoken by Sir Michael Somare, if it amounted to an illegal practice and uttered without the applicant's knowledge or authority, would have affected the results of the election?

(11) Whether it is just that the applicant should be declared not to be duly elected or that the election should be declared void?

(12) Whether the Trial Judge erred in law in his judgment that the words spoken by Sir Michael Somare, amounted to undue influence within the meaning of s.102(b) of the Criminal Code and an illegal practice within the meaning of s.215(3)(a) of the OLNLGE?

(13) Whether the Trial Judge erred in law in upholding the Petition on ground 2?

(14) Whether the words spoken by the applicant amounted to undue influence within the meaning of s.102(b) of the Criminal Code?

(15) Whether the Trial Judge erred in law in his judgment that the words spoken by the applicant, did not amount to undue influence within the meaning of s.102(b) of the Criminal Code?

(16) Whether the judgment of the Trial Judge is inconsistent with and contrary to the Christian principles adopted under the Constitution?

Analysis of evidence and the law

99. Firstly, it is necessary that I set out the law on which both parties rely and which all parties must comply with when seeking to challenge election results. These legislations and related relevant provisions have established a foothold in the decisions of the Supreme and National Courts of Papua New Guinea and which state the law in relation to election petition matters.

100. The Courts have interpreted these provisions and have laid the foundation and framework for the many election petition disputes. These cases are relied on by both Counsel in this case. It is for this Court to determine whether the applicant's request to the Supreme Court to annul the Trial Judge's decision is justified under the already well-established position at law, and as the Chief Justice said when he granted leave to review, that the review raises important points of law and are not without merit. (page 21 of his reasons; page 24 of Review Book, Volume 1).

101. There is no denying, that election petitions are serious matters. They challenge the wishes of the majority of electors in an election petition. Those who instigate any challenge must comply with the mandatory pre-requisites under s.208 and 209 of the OLNLGE. This includes the requirement to plead all the material and relevant facts sufficient to constitute a ground of any illegal practice or undue influence.
(my emphasis).

1. Relevant provisions from the OLNLGE and the Criminal Code
   

(i) Section 208 of the OLNLGE.

A Petition cannot proceed to a hearing unless the mandatory pre-requisites of s.208 are met. S.208 provides;

"A Petition shall –

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

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

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

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

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

102. In relation to s.208(a) of the OLNLGE, the Courts have stated over the years that the material and relevant facts must be pleaded and those depend on the grounds the facts seek to constitute. The grounds are set out under ss.215 and 218(1) of the OLNLGE and ss.102 and 205 of the Criminal Code. The principles in relation to compliance with s.208 were set by the Court in Barry Holloway v. Aita Ivarato & Electoral Commissioner [1988[ PNGLR 99. There, the Court held;

"The facts which must be set out under s.208 of the OLNLGE are the material and relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated, but not the evidence by which it or they might be proved. The purpose of the pleading is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to see with clarity the issues involved."

103. I discuss this further when under ground 1(i) of the issues.

(ii) Section 210 of the OLNLGE reads;

"210. No Proceedings unless requisites completed with.

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

(iii) Sections 102 and 105 of the Criminal Code

These are provisions of undue influence and illegal practices. Undue influence is an illegal practice under the OLNLGE and an offence under the Criminal Code. Therefore, the petitioner must prove every element of the offence with clear and cogent evidence.
(my emphasis).

104. Section 102 of the Criminal Code reads;

"S. 102. Undue influence

A person who –

(a) uses or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind to an elector –

(b) in order to induce him to vote or refrain from voting at an election; or

(c) on account of his having voted or refrained from voting at an election; or

1. by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election,
   

is guilty of a misdemeanour."

105. The Court considered the ground of undue influence in Re Menyamya Open Parliamentary Election Neville Bourne v Manesseh Voeto [1977] PNGLR 298, 299 and held that;

"a. The onus of proof in such proceedings is upon the petitioner to prove to the entire satisfaction of the Court the ground relied upon; that is to say it may be just short of the criminal standard although in application there being no real practical difference.

2. Where the ground relied upon in such proceedings is undue influence it will be necessary to prove undue influence as constituted by s.102 of the Criminal Code.
   

100. To constitute undue influence under s.102 of the Criminal Code it will be sufficient to prove that a person by fraud prevented or obstructed the free exercise of franchise by an elector, fraud for the purposes thereof including a false statement made by a person to an elector, known to be false or without belief in its truth or careless whether it be true or false with the intention that the elector should act upon it; any such instance of fraud preventing or making more difficult the elector's exercise of his right to vote falling within the section. It is not necessary to prove that the elector was actually induced to vote for the candidate."
     

106. In Ludger Mond v. Jeffrey Nape & Ors (2003) N2318, the National Court stated the following in relation to undue influence at page 22;

"It is obvious to me that in order for there to be a case of undue influence, there must be some force, threat or fraud involved for the purpose of securing votes, an election victory by a candidate or otherwise interfere with the proper conduct of elections. Speaking of the need to plead the elements of undue influence my brother Sawong.J, in Charles Luta Miru v. David Basua & Ors (unreported judgment) N1628 said;

"...because an election petition is a very serious matter, because of serious charges and consequences that petitions entail, it is certainly necessary that any ground alleging a criminal offence must state all relevant material facts to establish such an offence. That includes the necessity to spell out in clear and precise terms facts constituting the elements of the offence."

107. Therefore, in the National Court, the petitioner must prove with clear and cogent evidence that persons other than the first respondent (applicant) committed undue influence with his knowledge and/or authority.

108. Illegal practices are defined in s.105 of the Criminal Code as;

"105. Illegal practices.

1. A person who –
   
   • (a) being prohibited by law from voting at an election, and knowing that he is so prohibited – votes at the election; or
     
   • (b) procures any person who is, and whom he knows to be, prohibited from voting at an election – to vote at the election; or
     
   • (c) before or during an election, and for the purpose of, promoting or procuring the choice of any candidate at the election – knowingly publishes a false statement of the withdrawal of another candidate at the election; or
     
   • (d) before or during an election, and for the purpose of affecting the return of a candidate at the election – knowingly publishes a false statement of fact respecting the personal character or conduct of the candidate; or
     
   • (e) being a candidate at an election – withdraws from being a candidate in consideration of a payment or promise of payment; or
     
   • (f) being a candidate or the agent of a candidate at an election – corruptly procures any other person to withdraw from being a candidate at the election in consideration of any payment or promise of payment,
     

is guilty of a misdeameanour."

(iv) Section 215 of the OLNLGE

This section reads;

"215. Voiding election for illegal practices.

(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

(3) A finding by the National Court under subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(4) The National Court shall not declare that a person returned as elected was not duly elected, or declare an election void –

• (a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or
  
• (b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,
  

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void."

109. Section 215(3)(a) of the OLNLGE deals with illegal practices of bribery and undue influence and attempt of, committed by the winning candidate and other persons including agents and servants of the winning candidate, with the winning candidate's knowledge and authority.
(my emphasis).

110. On the construction of s.215(3), Andrew .J in Okuk v. Nilkare [1983] PNGLR 28 held that s.215(3)(a) is to be read alone. Therefore, where there was bribery or undue influence by a person other than the candidate, and it is done without the knowledge or authority of the candidate, the elections could not be voided.

111. Where there are allegations of illegal practices committed by the candidate (other than bribery and undue influence) the Court must be satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not duly elected or that the election should be declared void.

112. Sufficient and material facts are required to be pleaded to demonstrate the likelihood or tendency to affect the result of the election. Frost CJ: In re Menyamya Open Parliamentary Election, Neville Bourne –v- Manasseh Voeto (supra) and Sakora J: Lambu –v- Ipatas N1701 (19 November 1997).

113. When allegations of undue influence and bribery are made in a petition, these constitute allegations of criminal offences as well as electoral offences. Since the case of In Re Menyamya Open Parliamentary Election, Neville Bourne v Manesseh Voeto (supra), the law requires undue influence and bribery (ss 102 and 103 Criminal Code respectively) to be pleaded and proven as criminal offences. That is to say, firstly, that all the constituent elements of these two offences be pleaded (according to s 208 (a)) in the ground of a petition, and secondly, proven or established in evidence by the criminal standard of proof, proof beyond reasonable doubt. See, Agonia v Karo [1992] PNGLR 463; Karo v Kidu (Unreported N1626 of 9/10/97); and Lambu v Ipatas & Ors. (Unreported N1701 of 19/11/97).

114. As criminal offences, allegations of these misdemeanours must be pleaded as in an indictment for criminal prosecution containing all the constituent elements of each offence. If any element of the offence alleged is omitted or not pleaded, then the facts have not been pleaded as required by s 208 (a), rendering the allegation liable to be struck out.

115. In relation to allegations of illegal practices, there are three types of these covered by s 215. Firstly, s. 215(1) covers the situation of bribery and undue influence committed by the successful candidate. Second is that alleged to be committed by a person other than the winning candidate but with his knowledge or authority (s.215 (2)). The third situation concerns any other type of illegal practice, including those defined under the OLNGLE e.g s.178, committed by any one including the successful candidate himself: (s. 178(3)). To prove the s 215 (3) allegation(s), the Petitioner needs to plead as required and satisfy the Court according to the required standard, the following:

• the illegal practice the subject of the complaint; and
  
• the illegal practice other than bribery or undue influence committed by the successful candidate; or the illegal practice (including bribery and undue influence) committed by another person but with the knowledge and authority of the winning candidate; and
  
• the result of the election is likely to be affected by the illegal practice; and
  
• it would be just that the winning candidate be declared not to be duly elected or the election be declared void.

(my emphasis)

(See Sakora J in Koimanrea v Sumunda & Ors [2003] N 2421 (13 March 2003)).

116. For the purposes of s.215(3)(a) of the OLNGLE, apart from the elements of the offences or facts constituting the ground, the Petition must plead expressly that those illegal practices were committed with the full knowledge and authority of the winning candidate. How the offence affected the result of the election must also be pleaded. (See pg.16 Ludger Mond v. Jeffrey Nape & Ors (supra)).

117. The following are the material and relevant facts that must be pleaded to fully satisfy the requirements and the grounds in s.215(3)(a) of the OLNGLE;

(a) The Petitioner must state the facts giving rise to the illegal practice committed by a person other than the candidate.

(b) The Petitioner must plead expressly that those illegal practices were committed with the full knowledge and authority of the winning candidate.

118. In relation to s.215(3)(b) of the OLNGLE, the following are the material and relevant facts that must be pleaded;

(a) The Petitioner must plead that the illegal practice or conduct by the winning candidate was likely to affect the election results and show that. To do that, it is necessary to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or would have been affected.

(b) And a further requirement is that the pleading must also include that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. If it was pleaded, then evidence can be led to support the pleadings.

2. Discussion of the issues as related to the grounds of the Review and the evidence before the trial judge and his reasons.
   
   • (a) Ground 1(i) – This ground raises the first issue which is whether grounds 1, 2, 3 and 4 of the Petition were competent to have proceeded to trial in that, were ss.208, 212(f) and 215(3) of the OLNLGE, complied with?.
     

119. Mr. Ame for the respondent submits that ground 1 of the Petition states the date, place, time and the name of the person who made the speech and in whose presence the speech was made and which amounted to undue influence. He pointed out to the Court that the words that were uttered by Mr Nick Mare are set out in the Petition, both in the Pidgin language and the translated English version. He submits that the respondent had called evidence to substantiate those allegations and was successful. That it is now too late to ascertain facts and that therefore this ground must be dismissed with costs.

120. The applicant submits again that the amended Petition did not comply with the requirements of s.208(a) of the OLNLGE and is therefore, incompetent. In saying that, I have taken note of and am cognizant of the objections raised and pleaded in the Notice of Objection to Competency of the Petition contained at pgs.80 to 82 of the Review Book and the Objections to Competency set out at pgs.83 to 87 of the Review Book.

What did the trial judge say about this?

121. The Trial Judge's reasons for decision are contained in the Review Book, in the form he read to all parties on 11th September, 2008 in Madang. These reasons are set out at pgs.756 to 781 of the Review Book. Although the Trial Judge had assured all parties that he would give published reasons, he has not done that. Despite that, both Mr Ame and Mr Sheppard endorsed the Review Book to be in order and the matter proceeded, eventually to hearing. It has also lead this Court to accept that both parties were content with the verbal summary given by the Trial Judge.

122. Those reasons now form the basis of this Review. As to ground 1(i), the Trial Judge discusses this at pgs.756 and 778 of his reasons. At pg.756, he states at par.3 that there is evidence of two meetings, one on the 21st and the other on the 28th June, 2007, which is the date the respondent alleges Nick Mare made certain allegations and which is pleaded in ground 1 of the Petition. The Trial Judge states that "there was a conflict there" (pg.766). He states that Mr Alois Bendum and the applicant's evidence is that there were two meetings.

123. His Honour discusses at par.4 on pg.766 that the respondent called two witnesses whose evidence were inconsistent and then formed the conclusion;

"...that those witnesses who gave evidence of the two meeting ought to have explained where Mr Mare was on the second occasion. In light of the very fact that Nick Mare was an important supporter of the third respondent, Campaign Manager and former recently because just on the eve of the last elections, there were amendments to the Organic Law affecting the status of Presidents of Local Level Governments...So there ought to have been some explanations as to where he was or why he was not there if indeed he was not present on the 28th Meeting." (pg.766)

124. At pg. 778, the trial judge said this;

"In the end result, applying the law firstly in relation to undue influence and illegal practices, s.102(d) of the Criminal Code Act; not (a) but (b) would be the pertinent provision and going to s.215 as the consequence of a finding, I have reached conclusions in relation to those four allegations contained in grounds 1, 2, 3 and 4 in relation to public statements, speeches, utterances that were objected to. Illegal practices, errors and omissions on the part of the electoral officials, also as I have just adverted to a while ago in the light of the law as stated and applicable and attempting to apply the law to evidence, if any, reach a conclusion that I shall announce now.

And that is that in relation to the allegations contained in grounds 1 to 4 inclusive, I find firstly that those statements were made. I am satisfied and I accepted the evidence of witnesses called on behalf of the petitioner; I found them as being said – I should note 1 and 2 were the more problematic ones whereas 3 and 4, Sir Arnold readily acknowledged making those statements with biblical text support. So with respect, paragraphs 3 and 4 did not pose as much difficulty in relation to convincing credible admissible evidence than 1 and 2.". (pg. 779)

125. That is all the Trial Judge states. He does not address the submissions raised by both parties.

126. I refer to the Objections to Competency of the Petition filed by the applicant and the Electoral Commission ('objection'). I refer to the objection because the Chief Justice, when ruling on the application for leave, ordered that this review is inclusive of preliminary rulings on objection to competency of the Petition made in the course of the trial proceedings (pg.25 of Review Book, volume1). The objection is contained at pgs. 80 to 81 of the Review Book, volume 1. Submissions by all counsel on the objections are quiet lengthy and are contained at pgs. 119 to 214 of the Review Book, volume 1. His Honour the Trial Judge ruled on the objection to competency on 13th March, 2008 whose reasons are at pgs. 215 to 234 of the transcript contained in volume 1 of the Review Book. The Notice of Objection by Amet Lawyers pleads extensively the non-compliance with the requirements in s.208(a) of the OLNLGE, more particularly subsection (a). One such pleading for the dismissal of the whole Petition is that the Petition fails to plead that the petitioner is a person entitled by s.208(c) to sign the Petition, thus offending s.208(a) of the OLNLGE. Another ground pleaded and which seeks the dismissal of the whole Petition is that the Petition fails to plead the date of declaration of the results of the election and consequently failed to demonstrate that the Petition has been filed within the time permitted by s.208(e) of the OLNLGE, thus contravening s.208(a)(e) of that Act.

Did the Trial Judge sufficiently and properly deal with the competency issue?

127. The Trial Judge held that the Objection in relation to the name is without merit. He held that this was "a little thing" (pg.230 of Review Book).

128. As to the 40 days limit, the Trial Judge was of the view that this was not a matter that required pleadings. He points out that the date of the declaration will determine when time runs because it is the official record of the election. (pg.230 of Review Book).

129. As to the majority of the objections, which the Trial Judge considered wholly rather than separately, the Trial Judge's views were that they were all "bad drafting, mis-citing of statutory provision and statute" (pg.231 of Review Book). The trial judge stated that this was careless drafting by the petitioner's counsel in the Court below resulting in the citing of laws that were not known. His Honour held that "with respect, the issues taken by Mr. Maguire were proper but with respect also my conclusion on the challenges were that in the end, they did not in any way constitute grounds that could lead to the striking out of the pleadings. And the main concern with respect ought to have been whether or not that facts were properly pleaded. And in that respect, I pause to note that s.208(a) does not state plead, does not use the word plead..." (pg.232 of Review Book).

130. The Trial Judge did not think that the objections had any merit and dismissed them.

131. However, at the hearing of the Review, the petitioner (the applicant), maintains that s.208(a) of the OLNLGE was not complied with, raising the issue again of whether grounds 1, 2, 3 and 4 of the Petition were competent to have proceeded to trial.

132. The requirement for compliance with s.208 are mandatory. Section 210 is also mandatory. These provisions are clear that unless the requirements of ss.208 and 209 are complied with, that there could be no proceedings in the National Court. This was held in the Supreme Court Reference Re: Delba Biri v. Bill Ginbogl Ninkama, the Electoral Commission of Papua New Guinea, Ben Bande and Bonoan Palume [1982] PNGLR 342.

133. The Supreme Court comprising Kidu CJ, Kapi DCJ and Andrew .J said at 345;

"...The Court there found that the equivalent to s.210 meant that unless the requirements of the equivalent of s.208 and s.209 were complied with, there could be no proceedings in the National Court as a matter of law. The requisites in s. 208 and s. 209 are conditions precedent to instituting proceedings by way of petition to the National Court. In our view, it is clear that all the requirements in s.208 and s.209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections, it is a Constitutional Law. Section 210 simply precludes any proceedings unless s.208 and s.209 are complied with.

The Organic Law gives no power to dispense with any of the requirements... The statute has clearly expressed its intention that a petition must strictly comply with s.208. It is not difficult to see why. An election petition is not an ordinary cause (In the Re Norwich Election Petition: Birbeck v. Bullard (1886) 2 T.L.R. 273) and it is a very serious thing.

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

(my emphasis)

134. The significance of applicants complying with the requirements of s.208 are clear. It is not for a Court to draw conclusions on what are clearly omissions be they typos or incorrect citing of statutes, etc. They all go towards satisfying the requirements in s.208. It is the applicant and his counsel who must ensure that the Petition is entirely correct, before it is filed. If not done, then there are no proceedings (petition) because of s. 210. This is analogous to the giving of s. 5 Notice under The Claims By and Against the State Act which is a condition precedent. In election petition matters the requirements under s. 208 must be fully complied with failing which, the Petition does not exist.

135. I find that grounds 1, 2, 3 and 4 of the Petition should not have been allowed to proceed. In my view, the 'errors' noted on the objection to competency are not 'little things' as described by the Trial Judge (pg.230 of Review Book vol.1) but all go towards the Petition being non-existent.

136. I now deal with ground 1(ii) to (viii) of the Petition.

Ground 1(ii) – This ground raises the second issue which is whether the words spoken by Nick Mare amounted to "undue influence" within the meaning of s.102(b) of the Criminal Code.

137. I have set out above the full text of s.102. I have also stated what the Court held in Menyamya Open Electorate (supra).

138. Mr. Ame submits that the trial judge correctly ruled on the effect of s.102(b) of the Criminal Code where he relied also on s.215 of the OLNLGE as a consequence of the findings. He submits that the trial judge did not err because he correctly applied the law to the findings of facts, based on the evidence before him.

139. The Trial Judge's findings on this are at pgs. 766 and 778 of the Review Book. I have already adverted to and mentioned the findings at pg.766. I have also already stated what His Honour said about this at pgs. 778 and 779.

140. That was all the Trial Judge said. What about the evidence that was put to the Court? Was that considered?

141. Firstly, the words complained of are those contained in ground 1.2 of the respondent's Petition which reads as follows;

"Yupela ol Sumgilbar iwok longlong long makim man. Man yupela sapotim ibin sanap pinis long Sumkar electoret na bihain em igo sanap long Usino Bundi na nau em ilaik sanap long Madang Regional Seat. Dispela man yupela sapotim em Highlands man, yupela no ken longlong long makim ol kain Highlands man olsem na yupela imas makim Amet asples man. Peter Yama em Highlands man na sapos yupela votim em na em win, Madang taun em Highlands bai tekova."

142. The translated English version is pleaded in ground 1 of the Petition as;

"You all of Sumgilbar continue to be out of your mind in choosing a man. The man you support had already contested the Sumkar Electorate and he contested the Usino Bundi and now he wants to contest the Madang Regional Seat. This man you support is a Highlands man. You must be out of your mind to support a Highlands man like him. You must vote for Amet, a local man. Peter Yama is a Highlands man and if you vote for him and if he wins, Madang town will be taken over by the Highlanders."

143. In the National Court, the respondent alleges that the statement was not true, that Nick Mare proceeded to make the statement to induce electors at Megiar Village and neighbouring villages to refrain from voting him, contrary to s.102(b) of the Criminal Code. Therefore, it was for the petitioner (respondent) in the trial Court, to establish to the satisfaction of the Court, the ground relied upon. If it is undue influence, it will be necessary to prove undue influence as constituted by s.102 of the Criminal Code. It is sufficient to prove that this person by fraud prevented or obstructed the free exercise of franchise by an elector, fraud for purposes of including a false statement by persons to an elector, known to be false and that the elector acted upon it (Menyamya Open Electorate) (supra)). In this case, there is conflicting evidence as to what actually occurred that day. Witness Benny Ade, for the petitioner (respondent) deposed that on 28th June, 2007 at Megiar Village, he heard Nick Mare make the speech and say words to the effect that "if people of Sumgilbar voted for Peter Yama, people from the Highlands will take over Madang town". But he did not depose in his affidavit that these words were alleged with the applicant's knowledge or authority. He confirmed that in examination in chief when he was asked if he had anything else to add, and he said no (at pg. 264, vol. 2 of Review Book).
(my emphasis)

Obviously, Benny Ade did not give any evidence in relation to whether Nick Mare said the alleged words with the applicant's knowledge or authority (pg.260 – 280, vol.2 of Review Book) which is the requirement at law (s.215(3)(a) of OLNLGE). (my emphasis).

144. Simon Dadau, the respondent's witness, deposed in his affidavit that the statements were made in the applicant's presence, but he does not depose that the applicant had knowledge of the alleged statement or that he authorized Nick Mare to make the alleged statement (pg.91, vol.1 of Review Book).

145. Simon Dadau's evidence did not state that the statement by Nick Mare was with the applicant's knowledge or authority (pg.281-312, vol.2 of Review Book).
(my emphasis)

146. The applicant called two witnesses in relation to this ground apart from himself. He gave verbal evidence but his affidavit was not tendered. His evidence is at pgs.502 to 513, vol.2 of the Review Book. He said that there were two speeches, one on 20th June, 2007 and the other on 21st July, 2007. He said Nick Mare spoke on one occasion. He said he did not recall Nick Mare speaking in the terms stated in ground 1 because it would not be something he would condone. (pg.506, line 30 of Review Book).

147. Nick Mare's affidavit is Exhibit "D7" (tab 18, vol.1 of Review Book). He denies the allegations in the Petition saying that he was not present at the meeting held on 20th June, 2007. It was also not put to Nick Mare in cross-examination that the statement made by him was with the applicant's knowledge or authority.

148. The next witness for the respondent in the trial Court is Alois Bedum. His affidavit is Exhibit "D8" sworn on 22nd October, 2007 and filed on 7th November, 2007 (tab 19, vol.1 of Review Book).

149. His evidence is that he was at a meeting on 20th June, 2007 and 21st June, 2007. That Nick Mare spoke at the meeting on 21st June, 2007 and did not make a direct or indirect reference to the respondent (pg.112, vol.1 of Review Book).

150. His evidence is also that he denies the facts pleaded in ground 1 of the Petition (pg.532, vol.1 – pg.544, vol.2 of Review Book).

151. If the Court were to rely on all the above evidence to establish the grounds of undue influence, the evidence must show beyond a reasonable doubt, that such statements were made. The evidence before the Court, apart from showing that the statements were made, is not clear and cogent evidence that the statements were made with the applicant's consent, knowledge and authority.

Ground 1(iii) - This ground raises the third issue which is whether the statement or words by Nick Mare amounted to an illegal practice within the meaning of s.215(3)(a) of the OLNLGE.

152. I have already set out the full text of s.215(3)(a) of the OLNLGE. I have also already stated the law in relation to this provision, basically that where there is bribery or undue influence by a person other than the candidate, and it is done without the applicant's knowledge or authority, that the election results will not be voided.
(my emphasis)

153. His Honour the trial judge discussed both ss.102 of the Criminal Code and 215 of the OLNLGE together. He discussed the evidence relating to these grounds that I referred to earlier without being specific as to what occurred on the evidence under each ground. As an example, at pg.772 of the transcripts and pg.18 of his brief ruling, His Honour said;

"And that is what has been imported into the criminal law and from there, from Section102 of the Criminal Code into the Organic Law extended to Section 215 of the Organic Law, undue influence constituting a situation where the winner, if the allegation is proven or established by proper admissible evidence, having his election voided, declared null and void...".

154. Again, with respect, the Trial Judge, without focusing on a ground and making a finding, appears to have discussed all grounds together and is very general in his reference to allegations and evidence, concluding only that Members of Parliament like Mr Hickey, Mr Arthur Somare, Sir Peter Barter, Sir Michael Somare and the applicant himself, were all seen together at Bangapela Village in the lower Ramu area on 25th June, 2007 and that these persons were making speeches in support of the National Alliance candidates being the applicant and Mr John Hickey (pg.765 of transcripts and pg. 11 of decision). At pg.773 of the transcripts, the trial judge said that such statements or speeches can be regionally or ethnically incendiary, with a tendency to encourage disunity and encourage tribalism. He said and characterized the speeches as being insensitive to the inflammatory nature of tribal allegiances. (pg.773 of transcripts). An extract of what the Trial Judge said is set out below;

"We have enough problems in urban areas caused by one factor or another for civil unrest to erupt in a short space of time. We do not with respect need our leaders to be fuelling these through speeches that are made. If only made for political reasons, the effect is the same in my respectful opinion. So insensitivity there, when we talk about one flag, one nation, forging a coalition of people from disparate tribal and regional groupings and I make mention of with respect under such circumstances the fragility of tribal enmities. I think with respect we witness this everyday in the urban areas; as I said for one reason or another, the fragility of unity that we have in PNG." (pg.773 of transcripts and pg.19 of reasons).

His Honour did not take into account or consider whether the statement by Nick Mare was done with the applicant's knowledge and authority. There is in fact a generalization by the trial judge that because the statements (that I refer to above) were made, that the public was greatly influenced.
(my emphasis)

I find that the Trial Judge has erred.

Ground 1(iv) – This ground raises the issue of whether if the words spoken by Nick Mare amounted to illegal practice, were said or uttered with the applicant's knowledge or authority.

155. Ground 1 is very detailed, being split into six sub-paragraphs. These sub-paragraphs all plead the events of 28th June, 2007.

But none of these paragraphs plead that Nick Mare's words were expressed with the applicant's full knowledge and authority. The fact that the Amended Petition pleaded that the applicant was present when the statement was made does not in itself fully satisfy the requirement of s.215(3)(a) of the OLNLGE.

156. Again, at trial, the Trial Judge only made general references rather than make all the important finding that the words were expressed with the applicant's full knowledge and authority.

I find that the Trial Judge has erred in that respect.

Ground 1(v) - This ground raises the issue of whether there was evidence before the Court that the words spoken by Nick Mare were with the applicant's knowledge or authority.

157. Firstly, the Trial Judge did not refer to any evidence that Nick Mare made the statement with the applicant's knowledge and authority.

158. Secondly, the Petitioner's (respondent's) witness Benny Adei, whose affidavit is sworn on 27th October, 2007 (Tab 8 vo. 1 of the Review Book), had paragraph 6 of his affidavit struck out. His evidence is contained at pgs. 265 to 280 vol.2 of the Review Book. He is the witness who deposed to the words allegedly spoken by Nick Mare. As stated above, Benny Adei did not depose in his affidavit that Nick Mare said those words with the applicant's knowledge and authority.

159. Simon Dadang, the petitioner's (respondent's) next witness, whose affidavit is exhibit "B2" (Tab 9 vol.1 of the Review Book) does not depose that the applicant had knowledge of the alleged statement or that he authorized Nick Mare to make the statement (pg.91 vol.1 of the Review Book).

160. The applicant's evidence on this, is that it was not something he would condone (pgs.502 to 513), vol.2 of the Review Book).

161. Alois Bedum, witness for the first respondent (applicant) swore an affidavit on 22nd October, 2007 (Tab 19, vol. 1 of the Review Book) which deposed that he was at the meeting of 28th June, 2007 but did not make a direct or indirect reference to the respondent (pg.112, vol.1 of the Review Book). That in his verbal evidence, he also denied the facts pleaded in ground 1 of the petition (refer to pg.532 of vol.1 of the Review Book to pg.544 of vol.2 of the Review Book).

162. In reviewing that evidence and the Trial Judge's reasons for decision, I find he did not consider any of that evidence.

I find the Trial Judge has erred.

Ground 1(vi) – This ground raises the issue of whether the words spoken by Nick Mare would result in the election results being affected and that therefore the candidate should be declared not to be duly elected or that the election should be declared void, which requirement again, was not pleaded in the Amended Petition.

163. On a thorough perusal of the Amended Petition and the full text of the statement allegedly made by Campaign Manager Nick Mare, although fully set out, does not state anywhere there, that the results of the election was likely to be affected and that therefore it is just that the candidate should be declared not to be duly elected or that the election should be declared void, pleaded in accordance with s.215 of the OLNLGE. The Petition is silent on this, more particularly the paragraphs mentioned above.

164. The trial Judge did not consider any of that. I find the Trial Judge has erred.

Ground 1(vii) - Did the petitioner in the National Court (respondent) have evidence to show that the results of the election were likely to be affected?

165. My review of the respondent's witnesses evidence in the National Court, that of Benny Ade and Simon Dadangs' which includes their affidavits, and including the transcript of their evidence, show that they did not depose to or give evidence on that aspect. The Trial Judge also did not address this in his reasons.

Ground 1(viii) - Was there any evidence by the respondent in the National Court that the applicant should be declared not to be duly elected or that the election should be declared void?

166. The evidence in support of this is the same. Again, I find that the Trial Judge has erred by not discussing the relevant evidence with the law. Additionally, the Trial Judge did not do so because the specific evidence that was needed to establish these important prerequisites was either very conflicting and/or, that there was none.

I find the Trial Judge has erred.

Ground 2

167. Ground 2 of the petition is pleaded in five sub-paragraphs. These paragraphs are summarized under ground 2 in the earlier part of this decision. Ground 2 must comply with the requirements of ss.215 and 218(a) of the OLNLGE and ss. 102 and 205 of the Criminal Code.

Ground 2(i) – This ground raises the issue of whether ground 2 of the petition is sufficiently pleaded to meet the requirements of ss.208 and 215(3)(a) of the OLNLGE.

168. Section 208(a) of the OLNLGE are the material and relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated. It is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to see with clarity the issues involved (see Barry Holloway v. Aita Ivarato & Electoral Commission (supra)).

169. The petition pleads and alleges at par.2.2 in both Pidgin and English that on 25th June, 2007 at Bangepela Village in the lower Ramu area of the Madang Province, Sir Michael Somare, in the company of Government Ministers, Arthur Somare, John Hickey, the applicant and other guests said the following words in both English and Pidgin, of which I only set out the English translation below;

"Don't vote for a man like Peter Yama. Peter Yama is a thief and he cannot change Madang Province and the party he has set up, cannot change Papua New Guinea. Vote for National Alliance man Arnold Amet for the Madang Regional Seat."

170. Firstly, does the petition set out the facts to invalidate the election or return?

171. This takes me to the second part of this ground, i.e does it plead the necessary facts to satisfy the Court that the requirements of s.215(3)(a)(b) of the OLNLGE have been pleaded?

172. Further still, does Sir Michael Somare's statement amount to undue influence pursuant to s.102(b) of the Criminal Code?

173. Section 215(3)(a) of the OLNLGE provides for illegal practices of bribery and undue influence, committed by the winning candidate and other persons including agents and servants of the winning candidate, and that these were done with the winning candidate's knowledge and authority. The element of the candidate's knowledge and authority is very important. If a person did or said things without the winning candidate's knowledge and authority and there is no evidence or it is not pleaded, then the petition should or will fail. In the applicant's own words, his submissions to the Trial Judge;

"So to prove s.215(3) allegations, the petitioner needs to prove as required and satisfy the Court according to the required standard the following; illegal practice, the subject of the complaint, illegal and practice other than bribery or undue influence committed by the successful candidate or the illegal practice including bribery and undue influence committed by another person, but with the knowledge and authority of the winning candidate; and the result of the election is likely to be affected by the illegal practice and it would be the winning candidate be declared not to be duly elected or the election be declared void." (pg.706 of Review Book vol.3)

174. Ground 2 of the amended petition does not state that the statements were made with the applicant's knowledge and authority. Nor is there evidence of that.

175. I find that these grounds are not sufficiently pleaded to then enable the Trial Judge to make the finding that he did.

176. I discuss grounds 2(iii) and (iv) together and which are set out below.

Ground 2(ii) – Does Sir Michael Somare's statement amount to undue influence pursuant to s.102(b) of the Criminal Code?

Ground 2(iii) – This ground is in relation to whether the words spoken by Sir Michael Somare if pleaded in the petition, were spoken with the applicant's knowledge or authority.

177. The petition does not plead that in ground 2. The sub-paragraphs pleaded thereunder do not plead that the words were spoken with the applicant's knowledge and authority.

178. The petitioner's (respondent) witnesses in the National Court in relation to these grounds are Arnold Mambura, Alois Isok and James Tianga. The respondent's (applicant) witnesses are Sir Michael Somare, Arthur Somare and John Hickey.

179. Arnold Mambura gave verbal evidence which is contained at pages 316 to 331 of volume 2 of the Review Book, but his evidence is not definite on the alleged statement that Sir Michael Somare is alleged to have spoken. I set out below an extract of Arnold Mambura's evidence given in examination in chief (refer to page 322 at about line 20, vol.2 of the Review Book);

"A: Last speaker was our Grand Chief, Sir Michael Somare. During the eve of his speech, he talked about some good developments will be taking place – some good developments will be taking place.

Q: Will be taking place.

A: Will be taking place if his party National Alliance gets the government. And just before he finished his speech, he said something and the wordings that he said was: "Noken votim kain man olsem Peter Yama. Emi no nap long senisim Madang Province."

MR MAGUIRE: Sorry, could we have that again, please?

A: "Em ino inap long senisim Madang Province na party em sanapim I tu bai ino nap long bringim sevis long Madang na Papua New Guinea. Votim National Alliance candidate Sir Arnold Amet long regional seat." After that, we the listeners, at that very moment got irritated and I was at the scene, I saw a young person getting a little cassowary, which he was trying to give as a present to Sir Michael.

180. Arnold Mambura continued to give evidence and at about line 10, on pg. 323, he said, "Your Honour, this is the end of my statement of facts." He said that without even giving definite evidence on whether the statement allegedly made by Sir Michael was with the applicant's knowledge and authority.

181. Arnold Mambura confirmed this in his evidence contained at pg.324, about line 30 of the Review Book when he told his lawyers;

"MR LOMAI: Yes, Your Honour. Did he say any other thing apart from stating the policies of his party?

A: No."

182. Additionally, when the trial judge asked the witness to summarise his statement in English, he gave a different answer to what he said earlier and which is contained at page 325, about line 20, vol. 2 of the Review Book. He said;

"HIS HONOUR: All right, thank you, no questions, no cross-examination. Let me if I need to ascertain anything before you go. Mr Mambura, for the record, what is the English version of what you said; just in a summary form, the English version of the statement?

"A: Do not ever vote for such a person like Peter Yama, he is a thief, he cannot bring in services into the province and the party that he formed will also – will never bring services into the province and country, Papua New Guinea. Vote for a NA candidate for the Madang regional seat, Sir Arnold Amet."

183. Later on, Mr Maguire asked the witness questions arising from the trial judge's question. Arnold Mambura gave a pidgin interpretation, which although in agreement with the English version he gave to the Judge on the Judge's questioning, again contradicted the first earlier statement he made.

184. Arnold Mambura did not give evidence that the alleged statement was made with the applicant's knowledge or authority.

Ground 2(v) - This issue is in relation to whether the petition pleaded that the applicant's election should be declared void because of the words spoken by Sir Michael Somare and further, that the results of the election was likely to be affected by the spoken words. Also, as to ground 2(iv), which refers to the submission that there was no evidence by the applicant that Sir Michael Somare spoke the words he allegedly spoke with the applicant's knowledge or authority.

185. The five sub-paragraphs of ground 2 do not in any way plead that.

186. The Trial Judge's reasons also do not cover this aspect of the pleadings. It is in fact devoid of any mention of this.

Ground 2(vi) – Should the applicant's election have been declared void on the basis of the words spoken by Sir Michael Somare when the petitioner did not lead any evidence and there was no evidence, that the results of the election was likely to be affected by those words?

187. I have reviewed the evidence presented by both parties. None of the evidence shows that this aspect of the requirements that would nullify the results of the election, were ever raised.

188. I find that the Trial Judge should not have decided the way he did without firstly being satisfied that there was good evidence to make the finding that he did.

Ground 2(vii) – This is in relation to pleading in the petition where the trial judge ruled that the applicant's election should be declared void because of the words spoken by Sir Michael Somare when the petition did not plead that it is just that the candidate should be declared not to be duly elected or that the election should be declared void because of the words spoken by Sir Michael Somare.

189. I have reviewed the whole evidence that was put before the Court. None of that evidence supports or confirms that the applicant should be declared not to be duly elected or that the election should be declared void because of the words spoken by Sir Michael Somare.

190. Again, the Trial Judge erred by making findings on very inadequate pleadings as demonstrated above.

Ground 2(viii) – This ground raises the issue of whether there was any evidence of the words spoken by Sir Michael Somare on whether it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

191. The Trial Judge's reasons or analysis of Sir Michael's evidence and involvement is referred to briefly at paragraph 4 of page 19 (pg.772 of Review Book). There, he does not review any evidence, only stating that he discussed the nature and contents of the words that were used by Sir Michael. Although, the trial judge said that, he did not do that. But he did say that the words used by Sir Michael were "...with respect pandering to disunity, pandering to divisiveness, which is of course contrary to the spirit and intent of the Constitution supposed to be united under one flag, for a simple purpose." (pgs.772 to 773 of Review Book). Nowhere in his reasons, does he refer to any evidence that the results of the election were likely to be affected by the words spoken by Sir Michael. His Honour found in relation to the grounds in the Petition that the denial by Sir Michael Somare was not unexpected. He said that as leader of the majority party in Government and having returned as the Government, that he would "naturally deny ever having said any bad or derogatory thing about any opposing candidate or rival politician or political party and its leader that would tend to change the present political landscape if only slightly." (pg.768 of Review Book and pg. 14 of Trial Judge's reasons). The Trial Judge said that as a leader of the party, it was vital for Sir Michael to maintain the parties' strength. He said that the people at the political campaign rally saw and heard what happened and that they have no reason to lie about a well-known and respected leader of his country.

192. But what was the evidence before the Court? The Trial Judge did not review any evidence, only making conclusions.

193. I find also that the Trial Judge made conclusions in his reasons without properly reviewing the evidence. If the statements were made, which is not proven, the evidence is not that they were made with the applicant's knowledge and authority.

194. Notwithstanding my conclusions above, I have also reviewed the evidence before the trial Court as contained in the Review Book and note these;

(i) Petitioner's (Respondent's) witness – Alois Isok

Exhibit "B3" is the affidavit of Alois Isok (refer to Tab 10, vol. 1 of the Review Book).

195. Alois Isok also gave verbal evidence which is at pgs. 332 to 340 of volume 2 of the Review Book.

Alois Isok did not give evidence that the alleged statement was made with the applicant's knowledge or authority.

(ii) Petitioner's (Respondent's) witness – James Tianga

196. Exhibit "B4" is the affidavit of James Tianga sworn on 24th October, 2007 (refer to pgs. 352 to 359, vol.2 of the Review Book). James Tianga also gave verbal evidence, which is at pgs. 352 to 359 of volume 2 of the Review Book.

Nowhere in the affidavit does James Tianga depose that Sir Michael Somare made the alleged statement of undue influence with the applicant's knowledge or authority. (my emphasis)

James Tianga also did not give verbal evidence on the element that the alleged statement of undue influence by Sir Michael Somare was made with the applicant's knowledge or authority. (my emphasis)

(iii) First respondent's witness – Sir Michael Somare

197. Sir Michael Somare's affidavit is Exhibit "D9" (refer to Tab 20, vol.1 of the Review Book). Sir Michael Somare's verbal evidence is at pgs. 624 to 644 of volume 3 of the Review Book.

198. Sir Michael Somare denies the allegations in ground 2 of the petition. It was also not put to him in cross-examination that he was lying.

199. Furthermore, it was not put to Sir Michael Somare in cross-examination that he said the alleged statement with the applicant's knowledge and authority.

(iv) First respondent's witness – Arthur Somare

200. Arthur Somare's affidavit is Exhibit "D10", sworn on 21st November, 2007 and filed on the same date (refer to Tab 21, vol. 1 of the Review Book).

201. Arthur Somare also gave verbal evidence, which is contained at pgs. 648 to 654 of volume 3 of the Review Book.

202. Arthur Somare's evidence at pg. 651, at about line 10 of volume 3 of the Review Book, is that at no time did he hear Sir Michael Somare make such an allegation (referred to in ground 2 of the petition).

203. It was not put to Arthur Somare in cross-examination that he was lying.

(v) First respondent's witness – John Hickey

204. John Hickey gave verbal evidence, denying ever hearing Sir Michael make the statement referred to in ground 2 of the petition. (refer to pgs. 655 to 660, vol.3 of the Review Book].

205. It was not put to John Hickey in cross-examination that he was lying.

206. Clearly, there is no evidence on which to find that the words spoken by Sir Michael Somare were with the applicant's knowledge or authority.

Grounds 3 and 4

207. Ground 3 is pleaded in three sub-paragraphs whilst ground 4 is pleaded in five sub-paragraphs. I deal with the both grounds together as that is how both counsel presented their submissions and have summarised them.

208. I deal with them as follows;

Grounds 3 and 4(i) to (v) - That grounds 3 and 4 of the Petition were incompetent because they did not sufficiently comply with the requirements of s.208(a) of the OLNLGE by failing to plead the provisions of the OLNLGE that it was alleged the words contravened.

209. Mr Ame submits that at the trial, evidence was led and facts proven by evidence and the decision was made based on those facts. He submits that the applicant's submissions do have merit.

210. The applicant submits that grounds 3 and 4 do not meet the requirements of s.208(a) of the OLNLGE. Section 208 states that a petition shall set out the facts relied on to invalidate the election or return. In this case, the facts relied on is the statement allegedly made by the applicant, that, "Yupela ol pipol long Kewai South yupela ino ken votim ol lida husat igat tupela or tripela meri" which when interpreted to English is "You people of Kewai South should not vote for leaders who have two or three wives." Apart from that, the Amended Petition also states or pleads at par.3.3 that the statements amounted to undue influence under s.102(b) of the Criminal Code. Further, at par.4.5 of the Amended Petition, it again pleads that the statement amounted to undue influence under s.102(b) of the Criminal Code. What are the provisions of the OLNLGE that should have been pleaded therein? Are the words sufficient in themselves to amount to undue influence? Did the person who made the statement, know the statement to have been false, thereby using such fraudulent means, making it difficult for the elector to exercise his free choice (see Menyamya Open Election (supra))?

211. These additional elements should have also been pleaded in the petition, not just the statement made by the applicant. The Petition is silent as to this.

212. At pg.706 of the Review Book, the applicant submits in the trial Court that "since the case of re Menayamya Open Election, the law requires undue influence and bribery to be pleaded and proven as criminal offences. That is to say firstly all the constituent elements of these two offences be pleaded according to Section 208 of the Organic Law in the grounds of the Petition and secondly, proven or established in evidence by the criminal standard of proof, proof beyond reasonable doubt..." . This is not disputed by Counsel for the respondent. But what did the Trial Judge say about this? The Trial Judges discussion of the evidence is at pgs. 770, 771 and 772 of the Review Book, being pgs. 16, 17 and 18 of the transcript of reasons. The trial judge noted that the applicant did not deny making the statement but that he explained it in the context of voters choosing proper leaders, ethical leaders who would have the interest of the people to heart rather than selfish interest. That the applicant said that within that context and of course "urging of voters not to vote for some people who had more than one wife." (pg.16 of transcript). The Trial Judge stated that it was known in the Electorate that the respondent was polygamous. The trial judge then said further at pg.17 of the transcript (pg.772 of Review Book);

"So in that context, what would the effect of such a statement have on ordinary voters? Ordinary voters I hasten to add through no fault of theirs, have not had the benefit of such education and experience so that they can make informed decisions as to the caliber of a candidate who present themselves to them. And these are the allegations concerning Section 102 of the Criminal Code Act, undue influence. And in my judgment, I look at the dictionary definitions of what undue influence is. What is influence and what is undue influence and in the context of a voter exercising his right under the Constitution to select somebody to represent him at the highest political forum of the country. Is that voter exercising a right that is envisaged by s.50 of the Constitution?..."

213. His Honour then discusses all the other grounds together including statements allegedly made by the applicant's other supporters, including the Prime Minister. His Honour said at pg.24 of the transcript of his reasons (pg.778 of the Review Book);

"...I am satisfied and I accepted the evidence of witnesses called on behalf of the Petitioner, I found them as being said – I should note 1 and 2 were the more problematic ones whereas 3 and 4, Sir Arnold readily acknowledged making those statements...

The issue in relation to 3 and 4 was whether the context in which Sir Arnold said he made the statement and found support from the biblical text was just that urging supporters to choose wisely rather than interfering with their freewill in the exercise of their right under the Constitution. As I said and I repeat making factual finding such as that of course does not automatically follow that the ground has been made out. And that has to be determined by the assistance which must be gained from what the law is in relation to the set of facts that have been found to have been proven...

The petition succeeds on grounds 1, 2, 3 and 4...." (pg.779 of the Review Book).

214. His Honour did not address the deficiencies in the pleading and evidence that I highlighted above. I find that His Honour made conclusions under this ground without properly considering the evidence before him. The findings he made were on very inadequate pleadings. I find the Trial Judge has erred.

215. Again, the Trial Judge did not discuss or make findings on the pleadings in relation to s. 208. It is the same in relation to s. 102, that the evidence does not prove beyond reasonable doubt that the ground existed at that time. I also set out the evidence in relation to grounds 3 and 4 and whether the Trial Judge considered them or not. These are;

(i) Petitioners (Respondent) witness – Andrew Columbus

216. Exhibit "B6" is the affidavit of Andrew Columbus sworn 27th October, 2007 and filed 29th October, 2007. (Tab 13, vol.1 of Review Book).

217. Andrew Columbus gave verbal evidence also, which is at pgs. 374 to 400 in volume 2 of the Review Book.

218. At paragraph 9 of his affidavit Andrew Columbus deposed that the respondent is a leader who has more than one wife who was a candidate for the 2007 elections. Andrew Columbus gave no evidence that the applicant made a false or threatening statement.

219. Andrew Columbus gave verbal evidence that the church always preaches that any man should have only one wife (refer to page 394, vol.2 of the Review Book). He also said that he respected the comments made by the applicant because it is written in the Bible.

(ii) Petitioner's (Respondent) witness – Kei Kiem

220. Exhibit "B7" is the affidavit of Kei Keim sworn on 24th October, 2007 and filed on 29th October, 2007 (refer to Tab 14, vol.1 of Review Book).

221. Kei Keim deposed in his affidavit that he knew the respondent had more than one wife.

222. Kei Keim also gave verbal evidence at pgs. 401 to 415 of volume 2 of the Review Book. His evidence is that "...in the rules of the church, they told us that men should only marry one wife." (refer to page 409, vol.2 of Review Book).

223. Kei Keim did not give any evidence that what the applicant said was untrue or a threat.

(iii) Petitioner's witness (Respondent) – Matru Damon

224. Exhibit "B8" is the affidavit of Matru Damon sworn on 27th October, 2007 and filed on 29th October, 2007 (refer to Tab 15, vol.1 of Review Book).

225. Matru Damon, at paragraph 6 of his affidavit, deposed that the respondent had more than one wife.

226. Matru Damon also gave verbal evidence which is at pgs. 416 to 428 of volume 2 of the Review Book.

227. Matru Damon did not give any evidence that what the applicant said was untrue or a threat. (refer to pgs. 416 to 428 of vo.2 of Review Book).

(iv) First Respondent's witness – the applicant

228. The applicant gave verbal evidence. His filed affidavit was not tendered as evidence.

229. The applicant's evidence is from pgs. 502 to 513, at volume 2 of the Review Book.

230. The applicant's evidence at pg. 508, line 10 of the Review Book, is of him talking at Kevasob Village, and of saying (line 40) that he spoke words to the effect described but they were in a biblical context.

231. In cross-examination, it was not put to the applicant that the statement made by him was untrue or a threat to voters.

The evidence in relation to ground 4

(v) Petitioner's (Respondent) witness – Andrew Columbus

232. Exhibit "B5" is the affidavit of Andrew Columbus sworn on 29th October, 2007 and filed on even date (refer to Tab 12, vol.1 of Review Book).

233. Andrew Columbus also gave verbal evidence which is at pgs. 374 to 400 in volume 2 of the Review Book.

234. At paragraph 6 of his affidavit, Andrew Columbus deposed to the respondent having more than one wife.

235. Andrew Columbus gave no evidence that the applicant made a false or threatening statement.

236. Andrew Columbus said that the church always preaches that any man should have only one wife (refer to pg.394, at volume 2 of the Review Book) and he also said that he respected the comments made by the applicant because it is written in the Bible (refer to pg. 399, vol.2 of Review Book).

(vi) Petitioner's (Respondent) witness – Kautil Marimari

237. Exhibit "B9" is the affidavit of Kautil Marimari sworn on 27th October, 2007 and filed on 29th October, 2007 (refer to Tab 16, volume 1 of the Review Book.

238. Kautil Marimari also gave verbal evidence which is at pgs. 428 to 435 in volume 2 of the Review Book.

239. At paragraph 6 of Kautil Marimari's affidavit, he deposes to knowing that the respondent has more than one wife (refer to pg.105 of volume 1 of the Review Book).

240. Kautil Marimari gave no evidence that the alleged statement by the applicant was false or threatening.

(vii) Petitioner (Respondent) witness – Kui Udag

241. Exhibit "B10" is the affidavit of Kui Udag sworn on 27th October, 2007 and filed on 29th October, 2007.(refer to Tab 17 of volume 1 of the Review Book).

242. Kui Udag also gave verbal evidence which is at pages 436 to 444 in volume 2 of the Review Book.

243. Kui Udag gave no evidence that the alleged statement by the applicant was false or threatening. He actually said that the statement would be appropriate for church, but not a political rally. (refer to pg. 443, about line 20 of volume 2 of the Review Book).

(vii) First respondent's witness – the applicant

244. The applicant gave verbal evidence. His filed affidavit was not tendered as evidence.

245. The applicant's evidence is contained at pgs. 502 to 513 at volume 2 of the Review Book.

246. The applicant said in evidence at pg. 508, line 10, of talking at Kevasob Village, and of saying (line 40) that he spoke words to the effect described but that they were in a biblical context.

247. In cross-examination, it was not put to the applicant that the statement made by him was untrue or a threat to voters.

248. Again, his Honour did not address the deficiencies in the pleading and evidence that I highlighted above. I find that His Honour made conclusions under this ground without properly considering the evidence before him. The findings he made were on very inadequate pleadings. I find the Trial Judge has erred.

Conclusion

249. The evidence is that the respondent in these proceedings relied very much on the Trial Judge's reasons, which did not address the very important fundamental procedural and mandatory requirements for an election petition to succeed.

250. I find on reviewing all the material before me, that the requirements at law in relation to pleadings were not adhered to by the respondent, resulting in evidence being called by the respondent herein, which did not in any way, satisfy these legal requirements. Additionally, the main elements in the provisions relied on by the respondent in the Court below, were not proven or established either by evidence or were not even pleaded.

251. The pleadings must be supported by evidence and vice versa. The pleadings lay the foundation of any civil claim, and election petitions are no different. The pleadings dictate the kind of evidence a party can call and the grant of a relief is subject to that evidence. Both the National and the Supreme Court have denied plaintiffs grants of reliefs that have no foundation in the pleadings even if there is evidence of it. The Supreme Court affirmed this in Steven Charles Pickthall v Lae Plumbing Pty Ltd [1994] PNGLR 363; per Sevua .J with whom Sakora .J agreed; see also PNGBC v Jeff Tole (2002) SC 694.

252. After having reviewed all the evidence as against the pleadings, I upheld all the grounds of appeal and find that the Trial Judge has erred in all respects.

Formal orders

253. These are the orders I make;

(1) That the Review is upheld;

(2) That orders 1, 3, 4, 5, 6 and 7 of the decision made on 11th September, 2008 in the National Court in EP No. 54 of 2007 are quashed;

(3) That the Petition in EP No. 54 of 2007 is dismissed;

(4) That the respondent shall pay the costs of this application including the hearing on the objection to the competency of the petition together with the costs of the National Court proceedings in EP No. 54 of 2007.

Formal Final Orders:

The final orders of the Court are:

1. The Orders 1, 3, 4, 5, 6 and 7 of the decision made on 11 September, 2008 in the National Court in EP No 54 of 2007 are quashed.
   
2. The Petition in EP No 54 of 2007 is dismissed.
   
3. The Respondent shall pay the costs of this review application including the hearing on the objection to competency of the petition together with the Costs of the National Court proceedings in EP 54 of 2007.
   

________________________________________
Young & Williams: Lawyer for the Applicant
Ame Lawyers: Lawyers for the Respondent