Nomane v Mori [2013] PGSC 14; SC1242 (12 July 2013)

SC1242

PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]

SCR NO 15 OF 2013

JIM NOMANE
Applicant

V

WERA MORI
First Respondent

ELECTORAL COMMISSION
Second Respondent

Waigani: Kandakasi J, Cannings J, Collier J
2013: 24 June, 12 July

ELECTIONS – objection to competency of petition – purpose of strict compliance with the Organic Law on National and Local-level Government Elections, Section 208(a) – whether necessary to cite full name of Organic Law throughout petition – whether necessary to plead which specific bribery offences in Criminal Code Section 103 have been committed – whether necessary to plead law in addition to facts – Organic Law, Section 208(d): attestation of petition by two witnesses – meaning of "attest".

The National Court upheld an objection to competency of an election petition and dismissed the petition on a number of grounds including breach of the rule in Browne v Dunn, failure to cite the full name of the Organic Law being relied on and failure to plead with particularity the specific bribery offences under Section 103 of the Criminal Code allegedly committed by the successful candidate. An unsuccessful candidate applied for and was granted leave to review the decision of the National Court under Section 155(2)(b) of the Constitution. This was the hearing of the application.

Held:

(1) The rule in Browne v Dunn is not generally applicable when the National Court is hearing an objection to competency.

(2) It is not necessary for a petition to cite the full name of the Organic Law on National and Local-level Government Elections on every occasion that that Organic Law is referred to in the petition.

(3) If a petition alleges that the successful candidate has committed the offence of bribery under Section 103 of the Criminal Code it is necessary to state which particular offence has been committed and its elements.

(4) Here, five of the 15 grounds of review were upheld but ten were dismissed, the most critical being that which alleged error by the primary Judge in holding that the petition was incompetent for having failed to specify with particularity the specific bribery offences that were committed by the successful candidate.

(5) Ultimately the application for review failed as the applicant failed to demonstrate that the primary Judge's decision to uphold the objection to competency was wrong.

(6) The application for review was dismissed with costs.

Cases cited

The following cases are cited in the judgment:

Agonia v Karo [1992] PNGLR 463
Aihi v Sir Moi Avei (2003) PGSC 11
Albert Karo v Lady Kidu (1997) N1626
Amet v Yama [2010] PGSC 46
Browne v Dunn (1893) 6 R 67
Ebu v Evara [1983] PNGLR 201
Ekip v Wimb [2012] PNGC 200
Eoe v Maipakai (2013) N5066
Freshfield v Reed (1842) 9 Meeson and Welsby 404[1842] EngR 172; , 152 ER 171
Holloway v Ivarato [1988-89] PNGLR 99
In the Matter of the Organic Law on National and Local-Level Government Elections, Karani v Silupa [2003] PGNC 103
Jim Nomane v Wera Mori and Electoral Commissioner of PNG, EP No 69 of 2012, 18.02.13, (unreported)
Kamma v Itanu (No 2) [2008] PGNC 4
Maladina v Abel [2012] PGNC 257
Mune v Agiru [1998] PGSC 3
Palme v Mel [1989] PGNC 30
Peter Isoaimo v Aihi Paru (2012) N4921
Philip Kikala v Electoral Commission & Nixon Koeka Mangape (2013) N4960
Sapau v Posangat [2013] PGNC 11
Sauk v Polye [2004] PNGLR 23
Shamu Patter v Abdul Kadir Ravuthan (1912) 28 TLR 583
The State v Principal Magistrate, District Court, Port Moresby; Ex Parte the Public Prosecutor [1983] PNGLR 43
Wenge v Naru [2013] PGNC 32

APPLICATION

This was an application for review of a decision of the National Court to uphold an objection to competency of an election petition.

Counsel

A Manase, for the applicant
J Napu, for the First Respondent
C Lari, for the Second Respondent

12 July, 2013

1. BY THE COURT: This is an application pursuant to Section 155(2)(b) of the Constitution to review the decision of the National Court (Gauli AJ) dated 18 February 2013. In that decision his Honour upheld the first respondent's objection to the competency of the applicant's Electoral Petition ("Petition") filed 3 September 2012, and dismissed the Petition in its entirety (Jim Nomane v Wera Mori and Electoral Commissioner of PNG, EP No 69 of 2012, 18.02.13, (unreported)).

2. The applicant and the first respondent were both candidates for the Chuave Open Electorate in the 2012 General Election. Polling commenced in the electorate on 7 July 2012. On 29 July 2012 the Electoral Commission of Papua New Guinea, which is second respondent to this application, declared the first respondent to be the successful candidate.

3. The applicant filed the Petition in the National Court on 3 September 2012, seeking orders that the first respondent's election be declared invalid and that a by-election be called for the Chuave Open Electorate. The Petition alleged that the first respondent had on nine occasions illegally bribed voters in the electorate.

4. The first respondent filed a notice of objection to competency on 11 October 2012.

5. On its own motion the second respondent was joined as a party to the Petition by Order 1 of the National Court dated 14 November 2012. Order 2 of the orders of 14 November 2012 stated that the second respondent would only make submissions on the law and would not file affidavits.

6. On 6 February 2013 the applicant filed a notice of motion seeking to have the trial moved from Kundiawa to Goroka or Lae.

7. The notice of objection to competency was heard by Gauli AJ on 11 and 12 February 2013. At the objection to competency hearing, the applicant only pressed five of the nine alleged "bribery cases": Nos 3, 5, 6, 8 and 9.

8. On 18 February 2013, Gauli AJ ordered as follows:

(1) The First Respondent's objection to competency is upheld.

(2) The Petition is dismissed in its entirety.

(3) The Petitioner shall pay the Respondents' costs to be taxed if not agreed.

(4) The security deposit of K5,000.00 held by the Registrar to be released and paid to the Respondents in equal shares.

9. Helpfully at paragraph [70] of his decision his Honour summarised his reasons for finding that Sections 208(a) and (d) of the Organic Law on National and Local-level Government Elections ("the Organic Law") had not been complied with:

1. The Petitioner failed to fully state the name of a particular Organic Law, pursuant of which he was pleading s 215 of the Organic Law.
   
2. In pleading bribery under s 103 of the Criminal Code Act, the Petitioner failed to plead specific subsections under s 103 [of the Criminal Code which] the First Respondent is alleged to have committed since there are a high range of bribery offences with varying elements to be established under this provision.
   
3. The Petitioner failed to plead s 102 of the Criminal Code Act in particular to cases where he alleged bribery that involved undue influence.
   
4. The Petitioner sufficiently pleaded the addresses of the two attesting witnesses but they have not provided sufficient details of their occupation, by failing to name their employers and or their employment addresses.
   
5. In all five bribery allegations, there is [sic] adequate pleadings of the First Respondent handing out money to specific persons to dish out to the electors in their groups or Wards. However, there are insufficient pleadings as to when and where those persons who received the money from the First Respondent distributed or shared the money to the individual electors.
   

10. In the circumstances his Honour declined to order that the proceedings be transferred to another Registry.

APPLICATION FOR REVIEW OF DECISION OF GAULI AJ

11. The applicant filed an application for review of the decision of Gauli AJ on 25 March 2013, seeking orders that:

(1) The decision of the National Court of 18 February 2013 be set aside or quashed.

(2) The Petition be restored and paragraphs 7.4, 7.6, 7.7, 7.9 and 7.10 of the Petition proceed to trial before another Judge of the National Court.

(3) Costs of the National Court hearing and this application for review be granted to the applicant.

12. The applicant relies on fifteen grounds of review which can generally be grouped into grounds regarding the sufficiency of the pleadings, attestation of witnesses, and bribery allegations. More particularly, the grounds of review may be summarised as follows:

1 Grounds relevant to Section 208(a) of the Organic Law

• At [21] and [22] the primary Judge erred and misstated the principle in Holloway v Ivarato [1988] PNGLR 99 in finding that the purpose of strict compliance with Section 208 of the Organic Law is to make the opponent party aware of what the other parties are saying against him (ground 5.1).
  
• At [22] the primary Judge erred in finding that the principles in Browne v Dunn were applicable to proceedings in election petition matters at the competency hearing stage (ground 5.2).
  
• At [27] the primary Judge erred in finding that it was a requirement for the Organic Law to be named in full in the body of the pleadings (ground 5.3).
  
• At [30] the primary Judge erred in finding that Section 208(a) of the Organic Law requires a petitioner to plead which specific bribery offences were committed under Sections 103 (a) to (g) of the Criminal Code (ground 5.4).
  
• At [33] the primary Judge erred in finding that it was necessary in undue influence and bribery cases to plead the facts that constitute the elements to comply with the requirements of Section 208 of the Organic Law, because his Honour confused the law relating to pleading of undue influence under Section 102 of the Criminal Code with the law relating to bribery under Section 103 of the Criminal Code, and no allegation of facts pleaded offences of undue influence (ground 5.5).
  
• At [63] the primary Judge erred in finding that there were loopholes in respect of monies received by relevant groups such as to require matters of evidence to be pleaded such as "whether he received the money before or after he casted his vote" (ground 5.8).
  
• The primary Judge erred in upholding the objection to competency when the Petition pleaded sufficient and relevant material facts constituting the elements of the offence of bribery (ground 5.9).
  
• The primary Judge erred in striking out ground 7.6 of the Petition on the basis that the offence of bribery was committed by the candidate prior to the issue of Writ on 18 May 2012 (ground 5.10).
  
• The primary Judge erred in relation to his application of the "facts only and no evidence" rule, including that the facts insisted upon were matters of evidence and not facts (grounds 5.11, 5.12, 5.13).
  

2 Compliance with Section 208(d) of the Organic Law

• At [43], [44] and [45] the primary Judge erred in finding that attesting witnesses were required to provide their employer's name and address pursuant to Section 208(d) of the Organic Law (ground 5.6).
  
• At [47] the primary Judge erred in finding that attesting witnesses must have personal knowledge of the facts alleged in the petition (ground 5.7).
  

3 Second respondent's costs

• The primary Judge erred in awarding costs to the second respondent (ground 5.14).
  

4 Application for a change of venue

• The primary Judge erred in dismissing the application to transfer the trial to another venue (ground 5.15).
  

13. The Court granted leave for the application to be heard on 18 March 2013.

RELEVANT LEGAL PRINCIPLES

14. As observed by Salika DCJ and Batari J in Amet v Yama [2010] PGSC 46 at [4], the power of the Supreme Court to review all judicial acts of the National Court under Section 155(2)(b) of the Constitution is well settled, and extends to review of Election Petitions (against which there is no right of appeal under Section 220 of the Organic Law).

15. Section 208 of the Organic Law relevantly provides:

A petition shall:

(a) set out the facts relied on to invalidate the election or return; and
(b) ...
(c) ...
(d) be attested by two witnesses whose occupation and addresses are stated; and
(e) ...

16. Materially, Section 210 of the Organic Law provides that proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.

17. Compliance with Section 208 is strictly required. In Aihi v Sir Moi Avei (2003) PGSC 11 the Supreme Court (Amet CJ, Los J, Sakora J, Injia J, Sawong J) observed:

It is settled that in relation to s 210, a Petition must strictly comply with the mandatory requirements of s. 208, before the petition qualifies for a substantive hearing. The requirements in s. 208 are formal and technical procedural requirements, the determination of which is based on the information endorsed on the face of the petition...The merits of the grounds in a Petition are determined at the substantial hearing only after the petition survives the formal scrutiny under s. 210.

18. In Amet v Yama Salika DCJ and Batari J explained:

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 difficult 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...

19. Further, as observed by Davani J in the same case:

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.

20. In the circumstances of this case it follows that any non-compliance with any of the requirements imposed by Section 208 of the Organic Law means that no proceeding may be heard on the Petition, and the entire review of his Honour's decision must necessarily fail.

SECTION 103 OF THE CRIMINAL CODE

21. The Petition pleaded nine breaches of Section 103 of the Criminal Code. Section 103 states:

103. BRIBERY.

A person who–

(a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person any property or benefit of any kind–

(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or

(ii) on account of any person acting or joining in a procession during an election; or

(iii) in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or

(b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or

(c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or

(d) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or

(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or

(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or

(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors,

is guilty of a misdemeanour.

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

GROUNDS OF REVIEW

22. It is appropriate to now turn to the grounds of review raised by the applicant.

Grounds 5.1 and 5.2

23. Grounds 5.1 and 5.2 refer specifically to paragraphs [21] and [22] of his Honour's judgment. It is helpful to consider the context in which those paragraphs appear. After setting out Sections 208, 209 and 210 of the Organic Law his Honour continued:

[19] The requirement in Section 209 of the Organic Law has been complied with by the petitioner therefore it is not an issue. The only issue is whether all or some of the requisites under Section 208 have not been complied with that would make the petition incompetent.

[20] The competency to the petition does not discern into the merit of the petition rather its concern is on the sufficiency of the pleadings and the legality or the validity of the petition: see Sir Arnold Amet v Peter Yama [2010] SC1064. The competency to a petition depends on the facts pleaded. The petition must clearly set out the facts pleaded. The law is well settled by the Supreme Court in Sir Barry Holloway v Aita Ivarato & Another [1988-89] PNGLR 99, which held that:

"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."

[21] As to what "the facts" are as contemplated by s 208(a) of the Organic Law, Kapi DCJ, as then he was, (with whom Los and Hinchliffe JJ agreed), said at page 101, which statement of law has been followed by many later cases:

"The requirement of s 208(a) of the Organic Law is to set out the fact which constitutes grounds upon which an election or return may be declared invalid. Setting out ground without more does not satisfy the requirements of s 208(a) of the Organic Law. The facts set out under s 208(a) of the Organic Law would necessarily indicate the ground upon which the petitioner relies. The facts which must be set out under s 208(a) of the Organic Law are material or relevant facts which would constitute the ground or grounds upon which an election or return may be invalidated. In setting out the facts, they must be sufficient so as to indicate or constitute a ground upon which an election may be invalidated. What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to be clear about the issues involved."

[22] The reason for a strict compliance to Section 208 of the Organic Law is quite obvious and that is to make the opponent party be aware of what the other party is saying against him. Thus the principles in Browne v Dunn in civil proceedings are also applicable in the proceeding in the election petition matters not only as rule of practice but more importantly as a rule that allows fair play to all the parties: see Kamma v Itanu (No 2) (2008) N3261.

24. In relation to grounds of review 5.1 and 5.2 the applicant submitted that:

• The reason for strict compliance with Section 208 of the Organic Law is that Section 210 precludes any proceedings unless Sections 208 and 209 are complied with, not "to make the opponent party be aware of what the other parties are saying against him" as stated by his Honour.
  
• To that extent his Honour misapplied the principles of the need to plead facts under Section 208(a) as defined in Holloway v Ivarato [1988-89] PNGLR 99.
  
• The application of the rule in Browne v Dunn by his Honour was misconceived.
  

25. The respondents contend that:

• Grounds 5.1 and 5.2 do not clearly set out any grounds of review.
  
• His Honour did not commit an error of law in paragraph [22] of the primary judgment.
  
• The National Court did not say that the principles in Browne v Dunn were applicable in Election Petitions at the competency stage, rather his Honour cited the principle to reinforce the requirement of pleading clear and material facts.
  

Consideration

26. We accept the submissions of the respondents that grounds 5.1 and 5.2 do not make out any basis for disturbing his Honour's judgment in this proceeding. We form this view for the following reasons.

27. It is clear that, indeed, the key reason for a petition to comply with the requirements of Section 208 of the Organic Law is that Section 210 precludes proceedings on a petition unless those requirements have been complied with. His Honour clearly recognised the operation of Section 210 and the relationship of that section to Section 208. Further, it is clear that, in discussing relevant legal principles, his Honour was cognisant of – and understood – the principles explained in Holloway v Ivarato. While some doubt may be cast on the strict accuracy of his Honour's comments in paragraph [22] concerning the "obvious reason" for the need for full compliance with Section 208 of the Organic Law, in our view such comments can be explained as merely a policy observation of his Honour rather than expounding a rule of law. Indeed, not unreasonably, his Honour appeared to base his comments on observations of the Supreme Court in Holloway v Ivarato that:

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.

28. We note that these observations were recently repeated by Salika DCJ and Batari J in Amet v Yama at [36]. A policy observation of this nature does not, in our view, constitute an error of law as claimed by the applicant.

29. So far as concerns the rule in Browne v Dunn (1893) 6 R 67 we note that:

• the rule in Browne v Dunn fundamentally requires that any matter on which it is proposed to contradict the evidence-in-chief given by a witness must normally be put to that witness so that he or she may have an opportunity of explaining the contradiction, and failure to do so may be held to imply acceptance of the evidence-in-chief; and
  
• in the context of the discussion of the rule, Gauli AJ cited the decision of Kandakasi J in Kamma v Itanu (No 2) [2008] PGNC 4.
  
• In Kamma v Itanu (No 2) Kandakasi J considered the operation of the rule in Browne v Dunn in the context of election petitions. We note, however, that this was in circumstances where:
  
• his Honour had conducted a trial in respect of an election petition, rather than hearing an objection to the competency of that petition (as was the case here); and
  
• importantly – witnesses had been cross-examined in the course of that trial.
  

30. It was in that context that Kandakasi J observed at [40]:

40. In my view, the rule in Browne v Dunn is not only a rule of practice but is more importantly a rule that allows for fair play in the trial process so that each party is made aware of what the other is saying. This is necessary so that they can have the opportunity to consider and comment on the opponent's case and demonstrate why the Court should prefer their case to that of their opponent's or concede. In election petitions, this rule is necessary and its observance is a must, in my view, to enable the Court do "real justice" by coming to a decision on the substantial merits of the case after being guided by rules such as this and those I have earlier discussed.

31. To that extent, it appears that the primary Judge has used the comments of Kandakasi J in Kamma v Itanu (No 2) somewhat out of context. The rule in Browne v Dunn has no application at this preliminary stage in respect of an election petition, where the Court reviews the petition to determine whether all material facts have been pleaded by the applicant.

32. However, and notwithstanding this criticism of the reasoning of the primary Judge, we are not persuaded that the comment of his Honour at [22] led his Honour into an error of law. Rather, his Honour appeared to be employing an analogy to support his formulation of the policy rationale for Section 208. Nothing appeared to follow from this articulation of policy in the decision. No error of law is attendant upon his Honour's comments in paragraph [22]. Grounds of review 5.1 and 5.2 are therefore dismissed.

Ground 5.3

33. Ground 5.3 relates specifically to paragraph [27] of his Honour's judgment. The comments of his Honour in that paragraph take place in a broader discussion of the statutory basis of the objection to competency. In particular, his Honour states as follows:

[24] The Paragraphs 7.4, 7.6, 7.7, 7.9 and 7.10 of the Petition relates to the allegations on bribery. And the petitioner made mention of s 215 of the Organic Law to move the election of the First Respondent declared null and void.

[25] The First Respondent submitted that there are more than one Organic Laws and the petition did not specify which Organic Law he was relying on. To make sure the petition is competent, he should name the particular Organic Law in full, such as the "Organic Law on National and Local Level Government Elections" and not just the Organic Law. The Court must not be allowed to draw inference to cover drafting inadequacies and the Court should rule that an inadequately drafted petition is incompetent.

[26] The petitioner submitted that the "Organic Law" refers [sic] to is the "Organic Law on National and Local Level Government Elections". And that should be read together with the wording on the front or cover page of this Petition which reads: "IN THE MATTER OF ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVERNMENT ELECTIONS".

[27] I disagree with the Petitioner's submission. It is vitally important that the law must be fully pleaded with sufficient clarity in a petition, and that an Organic Law must be named in full, for example the "Organic Law on National and Local Level Government Elections" and not just an Organic Law. The wordings on the front cover page of the Petition, for that matter, are not part of the pleadings in a petition. This error or inadequacy of pleadings was repeated in all the alleged bribery instances in this petition. That in my view is a serious matter. The Court must not be allowed to draw inferences under what Organic Law a certain provision has been pleaded. There must be no vacuum left behind. To do so would mean the petition is incompetent. As professional legal officers, that responsibility lies on the lawyers drafting the pleadings in a petition. Naming a particular statutory law in full is a material and relevant fact to satisfy the s 208(a) of the OLNLLGE. Any errors in the petition cannot be amended in Court during submissions on objections to competency stage as per the decision of the Supreme Court in Delba Biri v Bill Ninkama (supra). I uphold this ground of objection to competency.

34. The applicant submits, in summary, that:

• The finding of his Honour in paragraph [27] constituted unnecessary nitpicking which the Supreme Court in Sauk v Polye [2004] PNGLR 23 said parties should avoid.
  
• The name of the relevant "Organic Law" was not a "material fact" required by Section 208(a) of the Organic Law.
  
• An electoral petition is required to be read as a whole. So, for example, the opening paragraph of the Petition refers to the full name of the Organic Law.
  

35. The respondents submitted that:

• It is not in the interests of justice to leave the Court and the Electoral Commission guessing as to what the relevant provision breached might be. The petitioner must set out the specific provision breached beside the alleged facts (Injia J in Mune v Agiru [1998] PGSC 3).
  
• The construction of the pleadings must comply with the requirements of Section 208(a) of the Organic Law. There is no authority to support the proposition that the pleadings include material on the cover page or outside the body of the pleadings, to be drawn into the statement of pleadings through inference.
  
• In this case the Petition had been drafted by lawyers. In that context, the submission of nitpicking is misconceived.
  

Consideration

36. A copy of the Petition is before the Court. On the first page of the Petition the following appears:

PETITION

TO: The National Court of Justice

PO Box 1368

LAE, 411

Morobe Province

The humble petition of JIM NOMANE of PO Box 251, Goroka, Eastern Highland Province who is one of the unsuccessful candidates for the Chuave Open Electorate in the 2012 General Elections, conducted by the Papua New Guinea Electoral Commission pursuant to the Organic Law on National and Local-Level Government Elections (the Organic Law) respectfully showeth as follows: ...

37. As we have already observed, Section 208 read with Section 210 of the Organic Law demands a strict approach to consideration of electoral petitions to ensure full compliance with Section 208. However in this case the unambiguous reference in the Petition to the "Organic Law on National and Local-Level Government Elections" was clear in the body of the pleading, as was the fact that the Petition then defined that particular Organic Law as "the Organic Law" for the purposes of the Petition. This is not a case where there was any doubt as to the precise Organic Law which the applicant pleaded.

38. In our view it was not necessary for the Petitioner to repeatedly refer in full to the Organic Law on National and Local-level Government Elections each time the Petition cited the Organic Law. In our view the findings of Injia J (as the Chief Justice then was) in Mune v Agiru do not support a finding to that effect. While we note his Honour's reasoning, in our view, on the facts of this case, the finding of non-compliance on the basis of failure to name the Organic Law in full cannot be supported, and constituted an error of law. Ground 5.3 is upheld.

Ground 5.4

39. Ground 5.4 relates specifically to paragraph [30] of the primary judgment, and in particular to paragraph 7 of the Petition and his Honour's discussion of whether the relevant bribery offences under Section 103 of the Criminal Code had been properly pleaded. As we noted earlier in this judgment, at the hearing before his Honour the applicant pressed only bribery cases 3, 5, 6, 8 and 9 pleaded in paragraph 7 of the Petition. In particular his Honour comments as follows:

[28] In paragraph 7 of the Petition, it is alleged that the First Respondent committed bribery thereby contravening s 103 of the Criminal Code Act. The First Respondent submitted that the petition did not state the relevant subsection under s 103 of the Criminal Code Act, the First Respondent is alleged to have violated. In Peter Isoaimo v Paru Aihi & Ors N4921, his Honour Cannings J said at paragraph 9 that "because of the high number of alternative elements it provides and the many different combination of elements this gives rise to, a Petitioner must specify what particular bribery offences are alleged to have been committed." In Peter Isoaimo v Paru Aihi case (above) the petitioner argued that the First Respondent committed bribery under s 103(a)(iii) and s 103(d) of the Criminal Code, and that was sufficient.

[29] In the present case, the Petitioner submitted that paragraph 7 of the Petition is only an introduction and it declares that the actions of the Petitioner as pleaded in the entire petition are criminal in nature. It is a general statement allegation setting out the general parameters of fact to be pleaded and they do not contain the facts.

[30] I understand that the term "Petitioner" in his submission refers to the "Respondent" as per the paragraph 7 of the Petition and that is the First Respondent. Bribery is a criminal offence and the law requires that the petitioner must prove bribery beyond reasonable doubt. Section 103 (a)-(g) of the Criminal Code Act has seven different offences of bribery all having different elements to prove them. The petition must specify which particular bribery offences the First Respondent is alleged to have committed under s 103 of the Criminal Code Act: see Peter Isoaimo v Paru Aihi & Ors (supra) applied. The pleadings must be specific and with clarity and not just in mere general terms. The decision of the Supreme Court in Holloway v Ivarato (above) is applicable as well. Any pleadings made in general terms will not suffice. I uphold this ground of objection to competency.

40. The applicant claims his Honour erred in respect of these findings because, in summary:

• There is no requirement in Section 208(a) of the Organic Law to plead the different offences of bribery under Sections 103 (a) to (g) of the Criminal Code as if it were an indictment.
  
• The insistence to plead the law is in breach of the decision of the Supreme Court in Mune v Agiru. As was observed by Woods J (Amet CJ agreeing) in that case:
  

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

• That case is authority for the proposition that the fact that a petitioner may not have specifically pleaded the exact Section of the law of which he may avail himself is not a material fact – rather it is a conclusion of law which the Judge would consider at the close of all the evidence.
  
• The decision in Peter Isoaimo v Aihi Paru on which his Honour relied was made after trial of the petition.
  
• The Petition pleaded in paragraph 7 all the facts which will constitute the elements of the offence of bribery under Section 103 of the Criminal Code.
  
• His Honour failed to have regard to paragraph B7 of the Petition, which contains a general preliminary statement referring to bribery committed under Section 103 of the Criminal Code. This paragraph should have been read with the Petition as a whole.
  
• In paragraph 7.4 (a)-(l) of the Petition the applicant pleaded the date, time and place of the incident of bribery, names of electors who received the money from the first respondent, and the amount received, as well as the intention to bribe. Section 208(a) of the Organic Law requires no more of a petitioner, because otherwise the section would amount to a requirement to plead evidence.
  
• His Honour's objections are nitpicking, as there were sufficient facts constituting the elements of the offence of bribery being pleaded in the Petition.
  

41. The respondents submit however:

• In Mune v Agiru Injia J observed as follows:
  

I also agree with Woods, J that there is no requirement in s 208(a) that a petition should plead the law or relevant statutory provision which defines that ground. However, prudent pleading enables the court and the opposing party to be clear about the facts as well as the grounds constituted by those facts, upon which the election is sought to be invalidated. In certain situations, where the ground alleged is founded on a breach of statutory provision which confers a power or imposes a duty on a public official, it might become necessary to plead the relevant statutory provision referred to by the alleged facts. In other cases, simply pleading the facts alone may suffice. To simply plead the provision breached without supporting facts will not suffice...

• In this case lawyers have drafted this petition, therefore prudent pleading is of necessity to enable the Court and the opposing parties to be clear about the facts as well as the basis upon which the election is sought to be invalidated. The decision in Mune v Agiru is accordingly distinguishable.
  
• Findings of Cannings J in Peter Isoaimo v Paru Aihi are directly applicable, as are observations of Sawong J in In the Matter of the Organic Law on National and Local-Level Government Elections, Karani v Silupa [2003] PGNC 103.
  

Consideration

42. In this case the applicant clearly pleaded Section 103 of the Criminal Code in paragraph B7 of the Petition. This paragraph reads as follows:

It is alleged that prior to the commencement of polling on the 7th July 2012, for Simbu Province, and on the day of polling on 7th July 2012 for the Chuave Open Electorate, the Respondent and or his agents and or servants committed or engaged in several acts of bribery and/or with his knowledge and authority, to induce or procure votes of the registered voters or electors to vote for him and/or the Respondent, and with the intention to interfere unlawfully in the free voting in elections by electors, thereby contravening Section 103 of the Criminal Code Act, Chapter 262.

43. Paragraph B7.1 immediately following states:

The specific instances of bribery are as follows:-

44. The section headed "B1 PARTICULARS" then lists the nine bribery cases upon which the Petitioner relies.

45. The respondents submit that the Petition is fundamentally flawed because not only should paragraph B7 not be "read" with the particulars identifying acts of bribery (which do not identify specific legislative provisions), but the Court should also form this view in light of the fact that the Petition has been drafted by lawyers. In our view the fact that the applicant engaged lawyers to draft the Petition is of no relevance to whether requirements of Section 208 of the Organic Law have been satisfied. The requirements have either been satisfied, or they have not.

46. While in Mune v Agiru the majority of the Supreme Court took the view that it was not necessary to specifically plead legislative sections upon which the petitioner relied, it is also clear that in more recent times in cases such as Amet v Yama [2010] PGSC 46 the Supreme Court has taken a stricter approach to pleading. As Davani J explained in Amet v Yama:

[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 ss 208 and 209 of the OLNLLGE. This includes the requirement to plead all the material and relevant facts sufficient to constitute a ground of any illegal practice or undue influence. [Underlining in original]

47. In the same judgment her Honour continued:

[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...

[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.

48. This approach reflects the long-established practice in criminal law as explained by Pratt J (Kapi DCJ and Bredmeyer J agreeing) in The State v Principal Magistrate, District Court, Port Moresby; Ex Parte the Public Prosecutor [1983] PNGLR 43:

A long line of authorities (see for example Kennedy Allen, (3rd ed 1956), The Justices Acts (Queensland), 116 et seq) makes it abundantly clear that the information must set forth the elements constituting the offence as defined in the Act itself, and in order to obtain this greater particularity it has become standard practice to stipulate at the foot of the information the Act and section contravened. That reference, of course, will be to the definition section and not to the penalty section. Thus an information alleging wilful murder would refer to s 304 of the Criminal Code and not to the punishment section, s 309. Likewise, a charge of housebreaking would refer to s 407 (s 395 in the revised Code) which contains both the definition and the penalty and not to s 432 which refers to method of procedure and the maximum penalty which may be imposed where the offence is dealt with by a grade V magistrate. To refer in the information merely to s 432 is in my view both inconsistent and incorrect. The reference must be to the section in the Criminal Code which defines the offence (and thus makes it an offence). The section under which the particular information is laid is not s 432 but the definition section in the Code. [Emphasis added]

49. In our view the more recent articulation of the strict obligations of petitioners to comply with the requirements of Section 208 (and Section 209), imposed by Section 210, and explained in cases including Amet v Yama, represents the law.

50. In considering whether an electoral petition has strictly complied with Section 208, it is incumbent on the Court to be reasonable in that consideration. So, for example, as the Court has already noted in this judgment, there is no strict necessity for the full name of the relevant Organic Law – once properly and unambiguously defined in the Petition – to be set out at each instance of its mention in the pleading. The Court recognises that "nitpicking" in this respect is undesirable and can result in a petitioner being improperly denied his or her right to challenge an election result on specious grounds.

51. However, this does not relieve a petitioner from the strict obligation imposed by Sections 208 and 210 to plead all material facts. In our view, and consistent with the findings of the Supreme Court in Amet v Yama, it is incumbent on a petitioner to identify the relevant statutory provision relied upon. So:

1. While in an appropriate case a reviewing Court may consider that a preliminary reference to a statutory provision – for example, Section 103 of the Criminal Code – can then be properly read with subsequent particulars.
   
2. In another case the formulation of the pleading may be too broad, and result in ambiguity and failure to plead material facts.
   

In our view, this case falls into the second category.

52. As Cannings J correctly observed recently in Peter Isoaimo v Paru Aihi (2012) N4921 in relation to Section 103:

Because of the high number of alternative elements it provides and the many different combination of elements this gives rise to, a petitioner must specify what particular bribery offences are alleged to have been committed.

(Cf Kirriwom J in Wenge v Naru [2013] PGNC 32 at [63], Gabi J in Maladina v Abel [2012] PGNC 257 at [32].)

53. Sections 103 (a) to (g) of the Criminal Code define seven different and unrelated sets of circumstances in which a person will be guilty of a misdemeanour for bribery of an elector. Even if paragraph B7 of the Petition could be read with the relevant Particulars in B1 identifying the bribery cases, the Petition has not pleaded on which paragraph or on which combination of paragraphs in Section 103 the applicant relies. This fundamental flaw in the pleading is exacerbated by the fact that the petitioner has, without specific referral to the relevant paragraphs of Section 103, sought to generally aggregate the bribery cases upon which he relies under the broad umbrella of that section. This is so notwithstanding the fact that the specific bribery cases upon which the petitioner relies involve different facts (including different electors).

54. In the circumstances, a pleading (without more) that a range of bribery cases contravenes "Section 103 of the Criminal Code Act, Chapter 262" constitutes a failure to plead material facts, and a fatal non-compliance with Section 208 of the Organic Law. We reject the applicant's submission that Gauli AJ was "nitpicking" in his Honour's findings at [30] of the primary judgment. In our view, his Honour's findings concerning the competency of the Petition were correct. It follows that the respondents' objection to the competency of the Petition was correctly upheld. We dismiss ground 5.4.

55. While this finding is sufficient to dispose of the matter before us, in the interests of completeness it is appropriate to consider the remaining grounds of review before the Court.

Ground 5.5

56. Ground of review 5.5 concerns paragraph [33] of the primary judgment and his Honour's findings concerning undue influence. In particular, his Honour noted the submission of the first respondent that despite pleadings relating to undue influence which constituted the motive of bribery, there was no specific reference in the Petition to Section 102 of the Criminal Code to support those pleadings. At [32] his Honour continued:

[32] The Petitioner in his submission, indirectly address [sic] this ground of the objection to competency. He referred to a case of Jim Nomane v David Anggo (No 1) (2003) N2496, where Justice Gavara-Nanu said:

"In my opinion, such particulars may only be necessary in allegations such as undue influence and bribery, for which the facts constituting their elements as criminal offences must be sufficiently pleaded. And it is appropriate and necessary that the person who committed it and upon whom it is committed, how it was committed and specific, if not, general description of when it was committed are pleaded, so that not only the opposing party is sufficiently informed of what is alleged in the petition but the Court is also sufficiently informed of the issues raised in the allegations."

[33] It is undoubtedly clear that the case of Jim Nomane v David Anggo (No 1) (above), which also endorsed the case of Holloway v Ivarato (supra), confirms and supports that in undue influence and bribery cases, it is necessary to plead the facts that constitute the elements to comply with the requirements of the [sic] s 208 of the Organic Law on National and Local Level Government Elections. These two cases stressed the point that the pleadings must be clear and sufficient to inform both the opposing party and the Court as to what the facts and issues are all about so that the opposing party is not caught off guard. To induce means to persuade or influence someone from doing or not doing something. I find that the Petitioner failed to plead s 102 of the Criminal Code Act that the First Respondent had the intention to induce the electors to vote for him by giving or promising to give money or gifts. I uphold this ground of the objection to competency.

57. In summary, the applicant submits:

• The primary Judge misapprehended or confused the application of the law relating to undue influence under Section 102 of the Criminal Code and bribery under Section 103 of the Criminal Code because the offences have different constituent elements under Sections 102 and 103 of the Criminal Code.
  
• There was no allegation of facts pleaded constituting elements of the offence of undue influence under Section 102 of the Criminal Code in the Petition. The use of the word "induce" in the relevant bribery cases related to the petitioner's claim of bribery (under Section 103), not undue influence (under Section 102).
  

58. The respondents submit that:

• The applicant's submissions constitute an attempt to interpret the law and the relevant application of Sections 102 and 103 of the Criminal Code.
  
• In any event, Counsel for the petitioner did not make submissions on this issue at the hearing before his Honour. Accordingly, it would be unsafe for this Court to make findings on this issue.
  

Consideration

59. Both Sections 102 and 103 refer to actions "in order to induce" an elector to act in a certain manner (Section 102(a)(i) and (b) and Section 103(a)(iii)). Materially:

• Section 102 provides that a person who (inter alia) uses or threatens to use force in order to induce an elector to vote or refrain from voting (Section 102(a)(i)), or by means of force or fraud induces an elector to vote or refrain from voting (Section 102(b)) commits a misdemeanour.
  
• Section 103(a)(iii) provides that a person who (inter alia) confers, promises or offers property or a benefit in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election, commits a misdemeanour.
  

60. In this case the petitioner clearly only pleaded bribery under Section 103. With respect, this is amply demonstrated by the fact that the Petition related to "bribery cases", and that at the hearing before his Honour the applicant pressed only bribery cases 3, 5, 6, 8 and 9.

61. In light of the element of "inducement" appearing in Section 103 of the Criminal Code, the use of the word "induce" in the pleadings does not of necessity suggest that the petitioner was also pleading undue influence within the meaning of Section 102. We accept the submission of the applicant that his Honour erred in finding that the Petition failed to comply with Section 208 in respect of the failure to specifically plead Section 102. Ground 5.5 is upheld.

Grounds 5.6 and 5.7

62. Grounds of review 5.6 and 5.7 relate to the attesting witnesses to the Petition, and specifically to paragraphs 43, 44, 45 and 47 of the primary judgment. As his Honour observed, Section 208(d) of the Organic Law requires that witnesses attesting the signing of the petition by the petitioner must state their occupation and address. In this case there were two witnesses:

• Mr Philip Tengen, who gave his residential address as "Red Corner, Kama Village, Bihute Road, PO Box 251, GOROKA", and his occupation as "driver"; and
  
• Ms Anna Bawi, who gave her address as "Section 337 Lot 180, Tent City, PO Box 567, LAE", and her occupation as "legal secretary".
  

63. Materially his Honour found as follows:

[43] In the case of William Duma (supra) where the attesting witness said he was a taxi driver with no further details, the Court dismissed the petition for being incompetent due to non compliance to s 208(d) of the OLNLLGE. I find the case of William Duma (ibid) and Holloway v Ivarato (supra) are relevant to the present case. In the absence of further details of their occupation as a driver or a legal clerk without naming their employers, I find that these grounds of the petition are incompetent for noncompliance to the requisites under s 208(d) of the OLNLLGE.

[44] The law regarding attesting witnesses in election petition cases is well established in Raymond Agonia v Albert Karo [1992] PNGLR 463 and in a recent decision in James Yako Henry & Ors v Gordon Wing, William Duma & Ors N4899, that the failure by the attesting witness to disclose the firm, organization or company the attesting witness is working for is sufficient to render that s 208(d) of the OLNLLGE has not been complied with thereby s 210 of the OLNLLGE come into play.

[45] The petitioner has raised some very important points. But the law is well settled in Delba Biri v Bill Ninkama & Ors [1982] PNGLR 342, by the Supreme Court, that a petition must strictly comply with s 208(d) of the OLNLLGE and failure to comply with s 208(d), there can be no proceedings on the petition as per s 210 of the OLNLLGE. In the present petition, both attesting witnesses failed to disclose the relevant and material facts of their employment, particularly the name and address of their employers for the purposes of their easy identification if need be. ...

[47] Although it has not been raised as an issue here in this petition that the witnesses attesting a petition should be someone who knew the facts or some of the facts that occurred at the time of the election, the case of Philip Kikala v Nixon Mangape (above) has nevertheless set a precedent that the attesting witnesses must be someone who knows and can testify, confirm or verify all or some of the facts pleaded in a petition. The attesting witnesses who are knowledgeable about some of the facts that occurred during the election, will no doubt make the petition to be a genuine one. And I do apply and adopt the decision of his Honour Makail J in Philip Kikala v Nixon Mangape (supra). In the present petition, these two attesting witnesses, Anna Bawi and Philip Tengen were not in Chuave Open Electorate during the election therefore they did not witnessed [sic] all or some of the events that are the subject of this petition. Thus they are not in a position to verify the content of the petition and that renders this petition incompetent. I uphold this ground of objection to competency.

Ground 5.6

64. In relation to ground 5.6, the applicant submitted that the primary Judge erred because, inter alia, Section 208(d) of the Organic Law does not require the two attesting witnesses to state the names and addresses of their employers in addition to stating their names, occupation and addresses.

65. On the other hand the respondents submit that the primary Judge's approach was correct because:

• There is authority supporting his Honour's findings – for example Ekip v Wimb [2012] PGNC 200.
  
• The purpose of such disclosure of name, occupation and address is to ensure that the witnesses are readily identified if required: Agonia v Karo [1992] PNGLR 463.
  

Consideration

66. In our view the primary Judge erred in finding that Section 208(d) requires the two attesting witnesses to state the names and addresses of their employers. There is no such requirement. While it may be that the policy imperative behind Section 208(d) of the Organic Law is to permit ready identification of attesting witnesses if required, it does not follow that the disclosure of the names and addresses of their employers would lead to such identification given that individuals may change their employment. Further we are not satisfied that Ekip v Wimb [2012] PGNC 200 is authority for the proposition expounded by his Honour. In that case Kandakasi J was discussing Albert Karo v Lady Kidu (1997) N1626 where the attesting witnesses, who were taxi drivers, had given their address as "8 Mile, National Capital District" – such a large area that one would have difficulty locating the witnesses without the assistance of further information. At [67] in Ekip v Wimb Kandakasi J observed:

[67] Taking that position as a guide, I am of the view that, attesting witnesses must give sufficient facts about their names, whether they are known by only one name or another name also, their occupation in terms of what they do for living, their address by reference to Section and Lot numbers if that is applicable or street or road names, or village names, or names of settlements. Where the villages or settlements are big, some reference point for their ready location, such as a nearby school, church, river, creek, block number or names of any structure of easy identification and location should be given. Also if they are formally or informally employed and are usually not home most of the time, their work place addresses could be useful additional information. There can be no prescription of what address details attesting witnesses should provide as long as they provide sufficient details to easily locate them.

67. It is clear that the comments of Kandakasi J in Ekip v Wimb were qualified by the circumstances explained by his Honour. They do not support the finding of the primary Judge in paragraph [43] of the case under review. Ground of review 5.6 is upheld.

Ground 5.7

68. In relation to ground 5.7 the applicant submits that:

• Attesting witnesses are only required by Section 208(d) of the Organic Law to attest to the signing of the Petition by the Petitioner, and not the facts or relief sought: Aihi v Avei [2003] PGSC 11.
  
• In any event, Philip Tenge was a registered voter of Chuave Open Electorate (and accordingly was a credible person to attest to the signing of the Petition regardless of where he resides), whereas Anna Bawi is employed as a secretary of the lawyer representing the petitioner in this case.
  

69. The respondents however submit:

• As explained by his Honour at [46] in reliance on the recent decision in Kikala v Mangape [2013] PGNC 15 at [76], it is reasonable to expect the two witnesses to know all the facts of an election petition or some of them, or have personal knowledge of what transpired in the whole of the electorate or some of it, and be in a position to prove all or some of the facts alleged in the petition.
  
• As explained by the Supreme Court in Aihi v Avei [2003] PGSC 11 the purpose of Section 208(d) is to retain the genuineness or veracity of the petition.
  

Consideration

70. We note that there is a recent line of National Court authority led by the decision of Kandakasi J in Ekip v Wimb [2012] PNGC 200 which supports the respondents' submissions. In Ekip, his Honour considered the purpose and requirements of Section 208 of the Organic Law and stated:

In my view a combined reading and consideration of these provisions and the positive dictionary meaning given to the word "attest" means that the attesting witness under Section 208(d) has to be someone who witnesses not just a document but also he or she is someone who witnesses and is in a position to verify, confirm, substantiate, testify, certify, prove or otherwise demonstrate an event or occurrence stated in the petition. Such a person would be someone who lives in the electorate the subject of the disputed return or someone who is eligible to vote in the electorate. But more importantly, in either case, the attesting witness must be someone who is well versed with the facts relied on to vitiate the election return and if need be, be in a position to testify, confirm, verify or prove all or any those facts. This appears clear from the opening line of s 208, which says "A petition shall". For the purposes of s 208(d) "[a] petition shall ... be attested". This is not the same to say, the signing of the petition by a petitioner or anything else a petitioner or anyone does be attested. The provision specifically requires a petition to be attested by two witnesses, which means the whole of the petition, the contents of which the witness must be aware and be in a position to testify, confirm, substantiate or prove. This makes a lot of sense and ties in well with the fact that election petitions are serious matters and is a special process or jurisdiction with special and specific requirements which sets it apart from all other process in the National Court.

71. The approach favoured in Ekip was followed in Philip Kikala v Electoral Commission & Nixon Koeka Mangape (2013) N4960 in which Makail J upheld an objection to competency on the ground of failure by the two witnesses to properly "attest" the petition.

72. We acknowledge that there are good reasons for requiring an attesting witness to be someone who is in a position to testify, confirm, verify or prove the facts relied on in the petition. On the other hand it must be acknowledged that there is a competing view, based on the normal and natural meaning of the word "attest", which according to the Oxford English Dictionary means "to bear witness to, affirm the truth or genuineness of; to testify, certify". It is arguable that the "truth" to which the witness attests refers only to the signature of the person executing the document rather than its contents. As the Court of Exchequer explained in Freshfield v Reed (1842) 9 Meeson and Welsby 404[1842] EngR 172; , 152 ER 171:

The term "attest" manifestly implies that a witness shall be present, to testify that the party who is to execute the deed has done the act required by the power.

73. That is, attestation means simply that the witness is present and sees the instrument signed: Shamu Patter v Abdul Kadir Ravuthan (1912) 28 TLR 583. To that extent the witnesses can testify that the petition of the person who has signed as petitioner is genuine: Aihi v Avei [2003] PGSC 11.

74. It is not necessary for us to decide which of the competing views should be preferred. Both have merit and we feel that the Supreme Court should have the benefit of more detailed argument on this issue before a conclusive position is reached. For present purposes we will adopt the cautious approach that was taken by the National Court in Wenge v Naru [2013] PNGC 32 and Eoe v Maipakai (2013) N5066. Kirriwom J and Cannings J respectively expressed concern about what was considered to be a new interpretation of Section 208(d) and the introduction of a new requirement that was not known to exist at the time that the petitions in those cases were drafted and filed. We also note that the opinion expressed by Kandakasi J in Ekip was not one of the grounds on which his Honour upheld the objection to competency. His Honour expressly decided not apply that interpretation to the case at hand, recognising that it was a new interpretation of the law. His Honour's remarks were therefore obiter dictum (not essential to the decision; incidental remarks).

75. In light of the above we respectfully consider that the learned Judge should have taken a more cautious approach, reflecting the uncertainty evident in this area of the law. His Honour erred in law by insisting that the petition be attested by witnesses who knew all or some of the facts of the petition or had personal knowledge of what transpired in the electorate or were in a position to prove some of the facts alleged in the petition. Ground 5.7 is upheld.

Grounds 5.8, 5.9, 5.11, 5.12 and 5.13

76. In these grounds of review the applicant complains of specific findings of his Honour concerning the manner in which the applicant pleaded the allegations of bribery in the Petition. Grounds of review 5.8, 5.9, 5.11, 5.12 and 5.13 refer to paragraphs [63], [64], [67] and [68] of his Honour's judgment where his Honour said:

[63] To some extent I do agree with the Petitioner that date, place, time, the amount of money alleged to be involved in the bribery and the names of the electors who received the money intended to bribe other electors have been pleaded. But I noted that there are loopholes in the petition. For example, the money given to Siri Elementary School. Who did the First Respondent intended [sic] to bride [sic] or induce. Is it the teachers, parents or the students. The students of that school would be under aged to vote. There is no pleading that these children were electors and have cast their votes at the election. It is not even pleaded if the giving of the money to that school was to induce the students, parents or the teachers.

[64] Regarding the monies given to other persons to be distributed in their respective groups such as the women's group, men's group, the youths and the security boys. There is no pleading as to the number of electors from each of these groups who have in fact received the money, the name of the person from whom they received the money, the dates, time and places where they received the money and the amounts each elector received. The money given to Ako Peter on the 7th of July 2012. That was on the polling date. There is no mention whether he received the money before or after he casted his vote. ...

[67] The recent case in Michael Sapau & Ors v Charlie Benjamin & Ors (supra) clearly established that in allegations of bribery and or undue influence cases, the grounds must not only set out the relevant facts constituting such allegations but it must set out the names of persons alleged to have been bribed or induced.

[68] Since the money was intended to induce others, it is important that the date and place where the mothers received the money need to be specifically pleaded. And equally important that s 102 of the Criminal Code must be pleaded. I adopt the decision in Michael Sapau & Ors v Charlie Benjamin & Ors (supra). Hence, I find that the pleadings as they stand are insufficient to satisfy the requirements of s 208 (a) & (d) of the OLNLLGE and I allow this ground of the objection to competency.

77. The applicant submits, in summary, that:

• The primary Judge erred in finding that there were loopholes in respect of monies received by the respective persons, such as Ako Peter.
  
• Section 208(a) of the Organic Law only requires facts to be pleaded and not evidence or even law.
  
• The primary Judge contradicts himself in paragraphs [63] and [64].
  

78. The respondents submit:

• The primary Judge's findings are clear.
  
• So, for example, the relevant bribery case simply did not plead who was bribed or induced from Siri Elementary School.
  

Consideration

79. We note our earlier observations concerning the use of the term "induce" in the Petition and the application of Section 102 of the Criminal Code. To the extent that his Honour found that the Petition did not comply with Section 208 of the Organic Law because of the failure of the petitioner to specifically plead Section 102, his Honour clearly erred.

80. However, we nonetheless consider that his Honour's conclusions concerning "loopholes" in the Petition are valid. So, for example, paragraph 7.4(l) (bribery case 3) pleads that:

The money were given by the Respondent to the electors mentioned in paragraph 7.4 (c)-(g) and others from Siri village with the intention of procuring their votes or inducing them to vote for him.

81. Paragraphs 7.4 (c)-(g) specifically identify the individual electors to whom the first respondent allegedly gave money, and thus on one level it is possible that paragraph 7.4(l) means those particular electors. However the manner in which bribery case 3 is pleaded suggests that the specific electors were given money to pass on to a particular class of voters in the electorate – for example "the mothers" (paragraph 7.4(c)), "youths and young couples" (paragraph 7.4(f)) and "security boys" (paragraph 7.4(g)). That this is so is made plain by paragraph 7.4(h) where the Petition pleads:

After the Respondent had given out the total sum of K5,000.00 to these various groups of electors, he mentioned in the presence of all the electors who gathered there in Pidgin and said "yupela kaikai dispela moni na tingim mi long taim bilong vot". In English it means "You use this money and think of me at the time of voting." [Emphasis added]

82. In Karani v Silupa [2003] PGNC 103 Sawong J observed:

In Ikupu v Morauta and Murray v Somare (supra), the allegations in the petitions were grounded on bribery. But in either case the petitioner failed to plead one essential element of the offence of bribery – that an elector was bribed. The petition referred to "eligible voter" or named a person without saying whether he was an "elector". In either case the Court struck down all the allegations for that reason.

83. In Sapau v Posangat [2013] PGNC 11 at [17] Sawong J further observed:

Where the ground or grounds relied on is founded on bribery or undue influence, the grounds must not only set the relevant facts constituting the allegations of bribery or undue influence. The ground, must in addition set out the name of person alleged to have been bribed, there must also be allegations that this money, that property or that gift was offered by the successful candidate and that the reason it was given or offered was yet named election to vote or not to vote or interfere unlawfully, as the case may be, in the free voting of an election, per Sheehan J in Agonia v Karo & Electoral Commission [1992] PNGLR 463.

84. In our view his Honour was correct to say that there were "loopholes" in the Petition and that, to the extent that the Petition failed to plead material facts, there had been a failure to comply with Section 208(a) of the Organic Law. We do not consider that his Honour contradicted himself as submitted by the applicant – rather at paragraph [63] his Honour was observing that while the pleading was relatively comprehensive, it nonetheless bore fatal flaws. Grounds of review 5.8, 5.9, 5.11, 5.12 and 5.13 are accordingly dismissed.

Ground 5.10

85. Ground of review 5.10 relates to paragraphs [51] and [52] of the primary judgment where his Honour discusses paragraph 7.6 of the Petition. His Honour observes that the Petition pleads the giving of money as a bribe to a certain Jeremy Koi two weeks before the Writ was issued on 18 May 2012. His Honour relied on Ebu v Evara [1983] PNGLR 201 and Palme v Mel [1989] PGNC 30, and upheld the objection to competency.

86. In summary the applicant submits that Section 3(1) of the Organic Law defines "candidate" as including "a person who within three months before the first day of polling period announces as a candidate". Because the polling period commenced on 23 June 2012 (and the Writs was issued on 18 May 2012) in fact the first respondent became a candidate from 23 March 2012. It follows that, at the time that the first respondent gave the money to Jeremy Koi, the first respondent was a "candidate" and capable of bribing voters. Paragraph 7.6 of the Petition clearly pleads the elements of the offence of bribery under Section 103 of the Criminal Code.

87. The respondents submit that allegations to invalidate an election occurring prior to the issue of writs cannot be raised in an election petition, and similarly rely on Ebu v Evara [1983] PNGLR 201 and Palme v Mel [1989] PGNC 30.

Consideration

88. The relevant dates pleaded by the applicant are not in dispute – merely the principle whether the actions of the applicant can be encompassed by Section 103 of the Criminal Code.

89. In Ebu v Evara [1983] PNGLR 201 Bredmeyer J discussed the application of Section 215 of the Organic Law to the facts before him. Materially, Section 215 provides:

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. ...

90. Bredmeyer J observed:

Under the Organic Law there can be no candidates, ie nominated candidates, earlier than three months before the start of polling. Polling commenced in the Kikori Open Electorate on 5 June 1982. The writ issued on 15 March 1982. I consider that before 5 March 1982, there were no candidates in either of the two legal senses used in the Organic Law, that is on the normal definition or the extended definition. Before 5 March 1982, there were only intending candidates. Thus prior to the 5 March the intending candidates could campaign how they liked: they could erect enormous posters, they could say defamatory things about one another, they could offer bribes and commit acts of undue influence etc. — without regard to the Organic Law on National Elections. In other words they could disregard the rules of the game or the rules designed to provide for fair elections contained in the Organic Law. They would, however, be restricted by other laws — the Criminal Code, the Summary Offences Act, and the Defamation Act. I note that an act of bribery or undue influence committed in December 1981 could be prosecuted under the Criminal Code, ss 102 and 103. Those sections say "any person who commits ..." not any candidate. They too, like s 215 of the Organic Law, can result in a Member of Parliament vacating his seat.

91. With respect, we consider that his Honour misinterpreted the definition of "candidate" in Section 3(1) of the Organic Law. The fact that the alleged act of bribery occurred two weeks before the writ was issued is not a relevant consideration. The question is whether the person who allegedly committed bribery had within the period of three months before the first day of the polling period announced himself as a candidate. The first day of the polling period was 23 June 2012. Three months before then is 23 March 2012. So the question becomes whether the first respondent had announced himself as a candidate in the three-month period from 23 March to 23 June. We consider that this fact was adequately pleaded. Ground 5.10 is upheld.

Ground 5.14

92. Order 3 of the primary Judge's orders dated 18 February 2013 required the petitioner to pay the respondents' costs, to be taxed if not agreed. The applicant submits that his Honour erred in law by awarding costs of the notice of objection of competency to the second respondent in circumstances where:

• The application of the second respondent to be joined as a party to the proceedings was opposed by the applicant.
  
• It was unnecessary for the second respondent to become a party when no allegation was made against it.
  
• The second respondent was joined on the basis that it would not seek costs against the applicant.
  

93. The second respondent submits, in summary, that:

• The second respondent sought to be joined as a party on the basis that it has an interest in the outcome of the Petition as the authority responsible for the conduct of elections. It stated that its participation would be limited to the making of submissions.
  
• It is incorrect and misleading for the applicant to state that the second respondent was joined on the basis that it would not seek its costs against the applicant. The applicant has not produced the transcript or other evidence to support its assertion. Therefore, it was appropriate for the primary Judge to follow the normal rule that costs follow the event, and order that the applicant pay the second respondent's costs of the notice of objection to competency.
  

Consideration

94. We are persuaded by the respondents' submissions that there is no basis for disturbing the primary Judge's order. Ground 5.14 is dismissed.

Ground 5.15

95. The applicant submits that in refusing to hear his application to transfer the trial to another venue, the primary Judge breached the principles of natural justice in contravention of Section 59 of the Constitution, which states:

1. Subject to this Constitution and to any statute, the principles of natural justice are the rules of the underlying law known by that name developed for control of judicial and administrative proceedings.
   
2. The minimum requirement of natural justice is to act fairly and, in principle, to be seen to act fairly.
   

96. The first respondent submits that the primary Judge heard and refused the application for change of venue. His Honour refused the application because it breached Section 222(2) of the Organic Law in that a law firm other than that representing the applicant at the objection to competency hearing made the application (paragraph 8).

97. The second respondent submits that ground of review 5.15 is misleading. The primary Judge decided that it was appropriate to hear the objection to competency prior to the application to transfer the trial to another venue. Since the objection to competency was upheld and the Petition consequently dismissed, the occasion to hear the application for a change of venue did not arise.

Consideration

98. We are persuaded by the respondents' submissions that there is no basis for disturbing the primary Judge's order. Ground 5.15 is dismissed.

CONCLUSION

99. Our determination of the grounds of review is summarised as follows.

Ground	Content	Determination
5.1	Misapplication of Holloway v Ivarato	Dismissed
5.2	Misapplication of Browne v Dunn	Dismissed
5.3	Insistence on citation of full name of Organic Law	Upheld
5.4	Insistence on pleading law and elements of offences	Dismissed
5.5	Misunderstanding of relevance of Criminal Code, s 102	Upheld
5.6	Attesting witnesses: employer's name and address	Upheld
5.7	Attesting witnesses: contents of petition	Upheld
5.8	Manner of pleading: loopholes	Dismissed
5.9	Manner of pleading: failure to plead sufficient facts	Dismissed
5.10	Definition of "candidate"	Upheld
5.11	Manner of pleading: facts only and no evidence rule	Dismissed
5.12	Manner of pleading: Sapau v Benjamin	Dismissed
5.13	Manner of pleading: who received money	Dismissed
5.14	Order for payment of 2nd respondent's costs	Dismissed
5.15	Refusal to hear application to transfer venue of trial	Dismissed

100. Although five of the 15 grounds of review have been upheld and in a number of respects the applicant has established errors in the primary judgment, ultimately the application for review must fail as the applicant has failed to demonstrate that the primary Judge's decision to uphold the objection to competency was wrong. The dismissal of ground of review 5.4 was critical. It is clear that in a number of respects the Petition failed to meet the requirements of clear and material facts for the purposes of Section 208(a) of the Organic Law so as to constitute the ground of bribery. The learned primary Judge properly decided that the absence of material facts rendered the Petition incompetent.

101. Costs will follow the event. The security deposit will be shared equally between the respondents.

ORDER

(1) The application under Section 155(2)(b) of the Constitution for review of the decision of the National Court of 18 February 2013 in EP No 69 of 2012 is dismissed.

(2) The applicant shall pay the costs of the application to the respondents on a party-party basis which shall if not agreed be taxed.

(3) The security deposit of K5,000.00 shall be paid to the respondents in equal shares.

Judgment accordingly.
___________________________________________________
Manase & Co Lawyers: Lawyers for the Applicant
Napu & Company Lawyers: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second Respondent