Talita v Ipatas [2016] PGSC 89; SC1603 (16 March 2016)

SC1603

PAPUA NEW GUINEA

[IN THE SUPREME COURT OF JUSTICE]

SC REV (EP) NO. 45 OF 2013

SANDY TALITA

Applicant

V
PETER IPATAS
First Respondent

THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Batari J, David, Bona JJ

2016: 16^th March

ELECTION PETITION REVIEW – election petition – grounds and facts - objection to competency of – pleading of illegal practices excluding bribery committed by persons other than winning candidate – knowledge and authority of candidate – effect on election result – errors or omissions - pleading of – material facts – s. 208 (a) Organic Law on National and Provincial Government Elections – application of – winning margin - requirement to set out winning margin.

ELECTION PETITION REVIEW – election petition – attesting witness – requirement that election petition, “be attested by two witnesses whose occupation and addresses are stated” – “attest” - whether witnesses of fact alleged or mere witnesses to attestation of EP document - Organic Law on National and Local-level Government Elections s. 208 (d) considered and applied.

Facts

In the National Court the applicant’s petition was struck out. He sought a review on the basis that, amongst other matters, the Electoral Commission ought not to have been heard as it did not comply with court directions, that the ruling that an attesting witness to the petition did not supply sufficient particulars of address was wrong, that anyone can sign as an attesting witness and it was wrong to hold the witness must be able to attest to the facts pleaded in the petition, that the winning margin was as pleaded and not as held by the trial judge, that it is not necessary to plead the illegal practice was committed with the winning candidate’s knowledge or authority in the second situation under s. 215 (3) of the Organic Law, that it was not necessary to plead the names of witnesses to illegal practices at the polling, nor to plead whether or not there was any objection by the scrutineers, whether or not objection was taken is not a material fact, with respect to some grounds the judge was wrong to find material facts were not pleaded, and “just” that the winning candidate declared not duly elected, was not a material fact, it was not necessary to name the electoral officials committing errors or omissions, that it was sufficient to plead the ballot boxes contain more papers than were allocated to raise the inference that ballot papers were tainted, and that the declaration was made by a person without authority.

Held;

1. Where a petition seeks to disturb the results of an election the successful candidate and the Electoral Commission have standing to be heard on all aspects of the Petition and to contest the validity of the Petition, at [12];
   
2. A lot and section number and suburb name are sufficient particulars of an address for the purposes of s 208(d), at [20];
   
3. An attesting witness to a petition should be able to attest to the signing of the petition and to the facts pleaded in the petition, at [21-43];

Nomane v Mori & Electoral Commission (2013) SC1242; Kikala v Electoral Commission (November 2013) SC 1295 and Kimave v Tore (2013) SC 1303 not followed on this point.

4. Whether a statement of the winning margin is correct or not is not something that affects the competency of the Petition, it is a matter for trial, at [48];
   
5. In the second situation envisaged under s 215(3) the petitioner need not plead the illegal practice was committed with the winning candidates’ knowledge or authority, at [53];
   
6. In the second situation envisaged under s 215(3) the petitioner must plead (a) that the result of the election was likely to be affected, and (b) that it is just that the candidate should be declared not duly elected or that the election should be declared void, at [55] and also at [82];
   
7. A petitioner cannot plead inferentially in the alternative, this is impermissible, at [62];
   
8. Where it is alleged that voters and scrutineers were informed before the commencement of polling of illegal marking of ballot papers, it is not improper for the judge to require that the petition plead whether or not there was objection to conduct of voting and at the scrutiny of votes, at [69];
   
9. It is not permissible to plead there was no polling, or polling was flawed and also plead there was scrutiny without objection, at [72];
   
10. Where an election petition pleads illegal practices, errors and omissions committed at polling known by many people, it follows as a matter of consistency that it is necessary to plead errors and omissions committed by electoral officials in dealing with any objection against admission of the ballot box for counting at scrutiny, at [91];
    
11. Where legitimate votes are cast and there is no dispute at counting and a final tally of votes is posted with an eventual winner, that the result was declared by a person without authority is an immaterial error within the meaning of s 218(1) of the Organic Law, at [108];
    
12. The Application for review is dismissed with costs.
    

Cases Cited:
Papua New Guinea Cases Cited:

Albert Karo v. Lady Kidu (1997) N1626
Application of Ludwig Shulze (1998) SC 572; SCR No 5 of 1988
Applications of Kasap and Yama [1988–89] PNGLR 197
Dawa Lucas Dekena v Nick Kopia Kuman (2013) SC1272
Delba Biri v Bill Ninkama [1982] PNGLR 342
Electoral Commission of PNG v Simon J Solo (2015) SC1467
Ezekiel Sigi Anisi -v- Tony Waterupu Aimo (2013) SC1237
James Ekip -v- Gordon Wimb & Anor (2012) N4899
Jim Nomane v Wera Mori & Electoral Commission (2013) SC1242
Jimson Sauk v Don Pomb Polye (2004) SC769
Jurvie v Oveyara (2008) SC935
Kopaol v Embel and the Electoral Commission (2004) SC 727
Malcolm Smith-Kela v Peti Lafanama [1997] PNGLR 151
Moi Avei & Electoral Commission v Charles Maino (2000) PNGLR 157
Pais Wingti-v-Kala Rawali, Electoral Commission & Tom Olga (2008) N3285
Paru Aihi v Sir Moi Avei (No 2) (2003) SC720
Peter Wararu Waranaka v Gabriel Dusava (2009) SC980
Philip Kikala v. Electoral Commission & Anor (2013) N4960
Phillip Kikala v Nixon Mangape & Electoral Commission (2013) SC1295
PNG Air Pilots Assoc. v. Director of Civil Aviation & Anor [1983] PNGLR 1
Raymond Agonia v. Albert Karo [1992] PNGLR 463
Riddler Kimave v Poevare Tore & 2 Ors (2013) SC 1303
SCR 4 of 1980; the Petitioner M.T Somare [1981] PNGLR 265
Sir Arnold Amet v Peter Charles Yama (2010) SC 1064

Overseas cases cited:

Freshfield v Reed (1842)
9 Meeson and Welsby 404[1842] EngR 172; , 152 ER 171
Kitcat v. King (1930) 266
Re Bravada (1967) 2 LL ER 1244.
Shamu Patter and Abdul Kadir Ravutha (1912) TLR 583 PC

Counsel:

Ian Molloy, with G. Purvey, for the Applicant
Paul Mawa, for the First Respondent
Ray Williams, for the Second Respondent

16^th March, 2016

1. BY THE COURT: On 16 July 2013 the National Court dismissed the election petition in EP 101 of 2012 in respect of Enga Provincial Electorate. This application seeks a review of the National Court decision.
   

Background in Brief

2. Sandy Talita lost his election petition at the outset when the Court of Disputed Returns upheld the respondents’ objection to the competency of his court action. He now applies to this Court to review the decision of the National Court. He alleges that the election of Peter Ipatas (First Respondent) as the winning candidate for Enga Regional seat in the 2012 General Election is flawed by reason of electoral officers committing illegal practices, errors and omissions at various polling booths and at the scrutiny of votes.
   
3. The grounds for review do not make easy reading. So, we opted to adopt and follow the order and form set out in the parties’ written submissions. We consider this necessary to avoid reproducing what on the face of the records are convoluted, verbose statements the Applicant expects the Court to wade through to identify and isolate the issues from submissions.
   

Judicial Review Application: Jurisdiction

4. The Applicant invokes the power of this Court under s. 155 (2)(b) of the Constitution to review a judicial act of the National Court because he has no right of appeal under s. 220 of the Organic Law on National and Local-level Government Elections (Organic law). The judicial review power has its own separate and distinct process from an appeal. The fundamental differences between the two jurisdictions have been echoed most recently by the Supreme Court in, Electoral Commission of PNG v Simon J Solo (2015) SC1467. See also, Moi Avei & Electoral Commission v Charles Maino (2000) PNGLR 157. See also, Peter Waranaka v Gabriel Dusava (2009) SC980; Dawa Lucas Dekena v Nick Kuman (2013) SC1272; Ezekiel Anisi -v- Tony Aimo (2013) SC1237.
   
5. The two basic criteria for grant of judicial review application are; (i) where the applicant is able to demonstrate an important point of law that is not without merit to be determined: Application of Ludwig Shulze (1998) SC 572; SCR No 5 of 1988; Applications of Kasap and Yama [1988–89] PNGLR 197; (ii) where on points of evidence, there is an obvious error on the face of the record or the finding of fact is so outrageous or absurd as to result in an injustice: Jurvie v Oveyara (2008) SC935; Waranaka v. Dusava (supra).
   

Grounds 5.1 & 5.2 - Standing and right to be heard

6. The first and second grounds of review are against standing of both respondents. The Applicant contends that the First Respondent lacked standing because there are no charges of illegal practice against him, or that such illegal practice, error or omission were done by others with his knowledge or authority.
   
7. Against the Electoral Commission (EC), the Applicant contends, that its failure to file an objection to competency did not entitle it to be heard. The Applicant’s further contention is that the EC should not be heard because it failed to comply with Court directions. The Applicant argued in the alternative against both standings that the Court wrongly exercised its discretion in entertaining the objection to competency of his Petition.
   
8. The issue of standing or locus standi is concerned with the right of persons having sufficient interest in the matter before the court to be heard and being given the opportunity to be heard. An applicant must have sufficient interest in that to which the application relates. The test of sufficient interest is an objective one based on the facts of each case: SCR 4 of 1980; the Petitioner M.T Somare [1981] PNGLR 265.
   
9. In PNG Air Pilots Association v. Director of Civil Aviation and Air Niugini [1983] PNGLR 1, the Supreme Court said at page 3:
   

“The plaintiff will have locus standi where he can show actual or apprehended injury or damage to his property or proprietary rights, to his business or economic interests and, perhaps, to his social or political interests.”

10. Any person whose rights or interests are likely to be affected by an administrative decision or judicial decision has a right to be heard by the decision-maker prior to making the decision: Pais Wingti-v-Kala Rawali, Electoral Commission & Tom Olga (2008) N3285.
    
11. In this case, the Applicant disputes the declaration of Peter Ipatas, as the winning candidate for Enga Regional seat. Peter Ipatas is named as ‘First Respondent. He is a relevant party with the right to defend himself and to be heard on the validity of his election. Likewise, the EC is a relevant party to any election petition disputing election results or returns. The EC being the nominal authority represents its electoral officials, servants and agents in all court proceedings. The EC also has the constitutional duty to uphold and defend the integrity of the elections and election processes.
    
12. Accepting that the allegations of wrong doings are directed only at electoral officials, this does not necessarily remove from Peter Ipatas or the EC, the vested interests in any question concerning the validity of Enga Regional election result. It is common sense, that the election results and any challenges thereto could invariably implicate each respondent. Hence, they have in their respective rights, standing to be heard in all aspects of the Petition and to contest its validity as the principles of natural justice or procedural fairness permit.
    
13. The balance of the issues concerns non-compliance with court directions and late filing of written submissions by the EC. It is a question of discretion whether the EC should be heard. We consider those failures by the EC, inconsequential. There has been substantial compliances with the court directions albeit, late. In our view, the allegations of misconduct against electoral officials are serious and raise substantial issues the EC ought to be heard on.
    
14. We dismiss these grounds. They lacked substance and are misconceived.
    

GROUND 5. 14: Occupation and Address.

15. On the substantive grounds for judicial review, we start with what we consider to be a threshold jurisdictional issue. Ground 5.14 states;
    

“The National Court erred in so far as it held that the requirements of s. 208(d) of the Organic Law had not been satisfied by stating in the petition, the occupation and address of the second attesting witness as “an electrician”, of Section 47 Allotment 77, Curleu Street, North Waigani.”

16. In the court below, one of the grounds of objection to competency of the Election Petition raised the validity of an attesting witness. The respondents argued that the address of the second attesting witness fell short of the requirement in s. 208 (d) of the Organic Law. The findings of the trial judge appear in the Review Book at p. 49, paragraph 110 as follows:
    

“110. The pleadings refer to “North Waigani” with respect, the second attested witness, gives his residential address as Section 47, Allotment 77. Where an address is incomplete and occupation is not stated, there is no compliance with s. 208 (d) of the Organic Law: Peter Waieng -v- Tobias Kulang or Electoral Commission (13.3.2013) EP. No. 75 of 2012.”

17. 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).”

18. Section 208 (d) of the Organic Law requires attesting witnesses to an election petition to state their names, their occupations in the context of what they do for a living and their addresses being their postal or residential addresses. That is the first requirement. The second aspect is whether the details provided are sufficient. The attesting witnesses are obliged to provide succinct and clear information and descriptions on those requirements as their personal circumstances may permit. If a villager, the name of his village and District within the electorate would be sufficient. Where a town address is given, a postal address is sufficient. If a residential address is given, it is useful to state the section and allotment numbers and suburb or settlement. The essence of requiring precise details of occupation and address is so that the attesting witness can be able to be easily located. It also makes the petition genuine.
    
19. Where the names or description of addresses or occupations are unclear, incomplete, inadequate, or given by some other description, or are confusing or falsified, the proof of attestation may be rejected. Consequently, the petition will be ruled invalid. This is a matter of court discretion to be exercised on a quick perusal and assessment of the information then available. See, Paru Ahi v Sir Moi Avei, (2003) SC 720; Delba Biri v Bill Ninkama [1982] PNGLR 342; Raymond Agonia v Albert Karo[1992] PNGLR 463; Malcolm Smith-Kela v Peti Lafanama [1997] PNGLR 151; Albert Karo v Lady Kidu (1997) N1626.
    
20. In this case, with respect, we are of the view that the second attesting witness has substantially complied with the requirement of s. 208 (d) of the Organic Law. What he has provided is the best succinct description of his address. He named the section, allotment, street and suburb where he lives. It is reasonable to assume, “North Waigani” is located within the National Capital District (NCD). We are not aware of any other “North Waigani” outside NCD which may cause confusion or doubts on the validity of the address.
    
21. However, we consider that s. 208 (d) has a third limb that has been the subject of recent court decisions. It the issue of who should sign as an attesting witness. We raised this during submissions as a salient feature of the addresses in question implies, both attesting witnesses were living and working in the NCD. It may also be reasonably inferred, that at all material times of polling and scrutiny, the witnesses were not present within the electorate and province.
    
22. One view is that anyone can sign as an attesting witness for the purpose of s. 208 (d) of the Organic Law. The opposing view starting with James Ekip -v- Gordon Wimb & Anor (2012) N4899 favour the strict approach of attesting to the signature as well as the fact that the EP is as attested by the petitioner.
    
23. This issue with respect, is said to have been settled by three recent Supreme Court decisions in, Jim Nomane v Wera Mori & Electoral Commission (2013) SC1242 (Kandakasi J, Cannings, Collier JJ); Philip Kikala v Electoral Commission & Anor (2013) SC 1295 (Salika DCJ, Cannings, Kariko JJ) and Riddler Kimave v Poevare Tore & 2 Ors (2013) SC 1303 (Gavara-Nanu J, Kandakasi, Cannings JJ) which favoured the more liberal approach that anyone can sign as an attesting witness.
    
24. In those cases, the Supreme Court held for the purpose of s. 208 (d) of the Organic Law, that the attesting witness is a witness to the execution of the EP document and not a witness to the truth of the contents of the document based on the normal and natural meaning of the word “attest”. Riddler Kimave v Poevare Tore & 2 Ors (supra) summed up the opinion in this way;
    

“In Kikala the Supreme Court overturned the trial judge’s ruling on this issue. It is now authoritatively been settled that the word “attest” means that the witness is able to affirm the truth or genuineness of the signature of the person who signs the petition. Attestation means simply that the witness is present and sees the petition signed. It is not necessary that the witness be in a position to testify, confirm, verify or prove any of the facts underlying the grounds of the petition. In the light of the Supreme Court decision in Kikala, it can be seen that, with respect, the learned primary judge erred in law.”

25. The proposition in Riddler Kimave v Poevare Tore & 2 Ors is consistent with the common law position that a reference to “attesting witness” ordinarily connotes someone who vouches for the authenticity of another’s signature by co-signing an instrument that the other has signed such as in proof of will or contract: See also; Freshfield v Reed (1842) 9 Meeson and Welsby 404[1842] EngR 172; , 152 ER 171; Shamu Patter and Abdul Kadir Ravutha (1912) TLR 583 PC.
    
26. With respect we consider, that it would not be unusual for the attesting or subscribing witness to have some personal knowledge of the subject matter of the document and be a witness to the contents, if need be.
    
27. Those Supreme Court decisions are by three member Benches. They are persuasive but not binding authority on another Supreme Court of the same composition. (Constitution, Schedule 2.9(2) and Underlying Law Act 2000, s.19(2)). We have considered the careful reasoning in those cases. There are sound reasons to adhere to and be consistent with the common law principle on attestation. With respect however, we are not convinced that the term “attest” cannot be restricted in its application in relation to election petitions.
    
28. We endorse the notion that attesting witnesses must be competent to verify the truth or genuineness of the allegations in the body of the petition. In our view the duty and role of the attesting witness in election petition is not limited to authenticating the EP document and its filing. To be a competent witness, we approve and adopt the initial view of his Honour Kandakasi J in James Ekip -v- Gordon Wimb & Anor (supra) that:
    

“... the attesting witness under s. 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 that 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 of those facts.”

29. We adopt this approach for a number of reasons. First, the affirmative clause in the Attestation form gives some support to the contrary view. The relevant portion which reads; “...this day witnessed the signing of this petition by the petitioner and attest to the matters contained in the petition” (emphasis added) defines two roles of the attesting witness: (i) to witness the petitioner sign the petition; (ii) to attest to the matters contained in the petition.
    
30. We are unable to ascertain the genesis of the Attestation clause. However, we have no doubt; the attestation clause is a valid statement of rule of practice authorized by s. 208 (d) of the Organic Law. Schedule 1.5 of the Constitution, envisages, that a constitutional form has to be given a fair and liberal meaning.
    
31. The phrase, “and attest to the matters contained in the petition” conveys an ordinary and fair inference of having personal knowledge or some knowledge of what is contained in the petition. According to Black’s Law Dictionary, Ninth Edition, “attest” means; “1. To bear witness; testify to the defendant’s innocence. 2. To affirm to be true or genuine; to authenticate by signing as a witness. The term “attest” in normal usage has the same meaning as prove, confirm, demonstrate, verify and corroborate. In our view, the fair and liberal meaning to be given to the phrase; attest to the matters contained in the petition is that the person counter-signing ought to be well-informed or to have some knowledge of what is contained in the petition. The inference is that if need be, the attesting person will be in a position to testify, confirm, verify or prove the allegations underlying the grounds of the petition.
    
32. Second, we consider that the requirement for strict adherence with the election processes leaves room for restricted application of “attest” to those in a position to verify and attest to what is contained in an election petition.
    
33. The requirement for strict adherence with the election processes starting with s. 210 of the Organic Law is to protect the importance and integrity of the election process whereby the electors have made their choices in the free exercise of their franchise. The election process must be upheld unless real cause can be shown that the process should be overturned.
    
34. So, anyone challenging the election result must first overcome the initial strict filtering process under sections 208, 209 and 210 of the Organic Law. The filtering process of objection to competency hearing, necessarily involves the strict application and compliance with those mandatory provisions and the election petition rules. Because issues of facts do not arise, the requirement for the court to be guided by the substantial merits and good conscience of each case without regard to legal forms and technicalities and the law of evidence under s. 217 does not apply. See, Kopaol v Embel and the Electoral Commission (2004) SC 727; Jimson Sauk v Don Pomb Polye (2004) SC 769; Biri v Ninkama (supra).
    
35. In our view, what sets an election petition apart from other legal documents is the specific requirement by constitutional law that the attesting witness states his occupation and address in s. 208(d) of the Organic Law. The strict application of this provision is to retain the genuineness or veracity of a Petition as echoed by the Supreme Court in Paru Aihi v. Sir Moi Avei (supra);
    

“The purpose of the requirement in s. 208 (d), as with the other requirements in s. 208, is to retain the genuineness or veracity of a Petition. This is necessary to protect the completed election process from being abused by disgruntled candidates or electors, agitated by the election results for all manner of political or personal reasons; by using the Court to have another re-run of the election process. An election by its very nature involve the masses with polarized political ideologies and a final (family) ties. One’s election loss can easily spur trouble or mischief if the procedural requirements for challenging an election are not strictly adhered to. The importance of the requirement in s. 208 (d) to state the attesting witness’ occupation and his address is to satisfy the Court and the affected parties that the Petition is genuine. The occupation of a witness(es) attaches to the witness’ capacity to verify the petition. For instance, an infant or mute person lacking full capacity would not be expected to verify or attest a petition.” (Underline added).

36. The necessity to “protect the completed election process from being abused by disgruntled candidates or electors, agitated by the election results for all manner of political or personal reasons” can be achieved by reading the phrase, “be attested by two witnesses whose occupations and addresses are stated” in s. 208(d) as a reference to two witnesses supporting the seriousness of the allegations in the election petition with their occupations and addresses and being in a position to verify the genuineness or veracity of the petition. And that intention is borne out in the Attestation form.
    
37. Third, s. 208 (a) and s. 208 (d) read together implies, the attesting witness is someone in a position to verify or otherwise demonstrate an event or occurrence stated in the petition. Section 208 (a) requires a petition to set out the facts relied on to invalidate the election or return. Because those requirements in s. 208 are to be read conjunctively, the combined effect is that those facts to which s.208 (a) refers must be attested to by two witnesses whose occupations and addresses are stated as required under s. 208 (d).
    
38. This interpretation is in our view, consistent with the requirements of Schedule 1.5 (1) and (2) of the Constitution which directs that each constitutional Law be read as a whole and all provisions of, and all words, expressions and propositions in, a constitutional Law “shall” be given their fair and liberal meaning. And Schedule 1.2 (b) of the Constitution, states that a Constitutional Law includes an Organic Law.
    
39. Fourth, filing of election petitions ought to be transparent so that only genuine petitions are entertained by the courts. In Philip Kikala v. Electoral Commission & Anor (2013) N4960 which decision was later overruled by the Supreme Court in Phillip Kikala v Nixon Mangape & Electoral Commission (2013) SC1295, the trial judge expresses the view, that the purpose of requiring two witnesses to attest to the petition;
    

“..... is to ensure that the petition that is filed is genuine and not one that is fabricated and filed purposely to undermine the leadership and representation of the successful candidate as the member-elect of the electorate in Parliament”.

40. With respect, we adopt that as a sound reasoning. In that case, the Petition was attested by staff from the law firm acting for the petitioner. The trial judge applied the decision in James Ekip -v- Gordon Wimb & Anor (supra) and upheld an objection to competency on the ground of failure by the two witnesses to properly “attest” the petition.
    
41. In this case, the address of the attesting witnesses being in the NCD and outside the electorate immediately raises the issue of eligibility of the witnesses to co-sign the Petition. We are mindful, that the attesting witnesses’ address need not be confined to the locality from which the election petition originates. Section 208 (d) simply requires an “address” and not a residential address: Albert Karo v. Lady Kidu (supra). The requirement to specify “residential address” on a petition may depend on the “personal circumstances” of the witness.
    
42. So, the “residential address” may be elsewhere from the electorate; in another electorate, or province. The address must however be clear and complete so that the witness is easily located: Raymond Agonia v Albert Karo (supra). He or she may not necessarily be someone eligible to vote in that electorate but is someone who is versed with the facts relied on to vitiate the election result and be in a position to testify, confirm, verify or prove all or any of those allegations in the petition.
    
43. Whether the person signing is an “attesting witness” for the purpose of s. 208 (d) is our view, a question of fact. In that regard, extrinsic evidence is admissible: Kitcat v. King (1930) 266, Re Bravada (1967) 2 LL ER 1244. The onus is on the petitioner to assert the competence of the “attesting witness” to give evidence on a fact or facts alleged in the petition.
    
44. In this case, one of the attesting witnesses is a lawyer while the other is an electrician. In 2012 the year of the general elections, both were presumably living and working in Port Moresby. There is nothing before us, nor is there any statement in respect of their competence to “attest” to the petition.
    
45. We are not satisfied that the Petition was filed in compliance with s. 208 (d) of the Organic Law. We conclude that the Petition and the whole proceedings have been flawed from the start. On this basis alone, the application for judicial review stands to be dismissed.
    

GROUND 5.3: Pleading of Winning margin

46. The Applicant introduced his third ground for review with a loaded statement on his pleading of the winning margin before alleging;
    

“The National Court Judge erred in saying, ‘I agree with Mr Mawa that the winning margin figure on this election was 31,723 votes and not 804 as pleaded on paragraph 4 of the petition’, where Mr Mawa .... did not contend 31,723 was the winning margin, the Court did not say how it arrived at that figure and in any event the figure of 31,723 was wrong because the winning margin was 804 as pleaded.”

47. This ground is confusing and misconceived. It does not raise a valid ground for judicial review. First, it is clear from his Honour’s remarks, that the trial judge accepted the whole of the contention and reasoning on the winning margin as extrapolated by Counsel for the First Respondent, Mr Mawa. A trial judge is entitled to adopt a party’s position in reaching a decision. This is not the same as saying the trial judge gave no reasoning at all.
    
48. Second, this ground questions the correctness of the nominal figure for the winning margin. A statement on the winning margin is in essence, to show on the face of the record, that by reasonable approximation, the election result is likely to be affected. Whether such statement in the Petition is correct or not, is not something that affects the competency of the Petition. That is a matter for evidence and final submissions. The parties can call evidence and argue about the correct formula in calculating the winning margin at the trial: Kikala v Electoral Commission & Ors (supra). This ground is dismissed.
    

GROUND 5.4 : Knowledge or Authority

49. The Applicant alleges in this ground that the National Court misconstrued s.215(3) of the Organic Law as requiring that where a petitioner alleges any illegal practice committed by a person or persons other than the winning candidate, it must be pleaded that such practice was committed with the winning candidates’ knowledge or authority. The ground was not drafted in concise and clear form, nor did it read that easily.
    
50. This issue arose from the respondents’ objection that paragraphs 7 to 19; 20 to 27; 28 to 35 and 66 to 67 of the Petition failed to plead that the perpetrators committed the alleged illegal practices with the knowledge or authority of the winning candidate under s. 215(3). Section 213 (3) reads:

“215. Voiding election for illegal practices.

(1) .....

(2) .....

(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.”

51. Section 215 (3) envisages two types of illegal practices namely;
    
    1. Where the illegal practice is committed by a third party with the knowledge or authority of the winning candidate; and
    2. Where the illegal practice is other than bribery or undue influence.
       
52. In the first type situation, the illegal practice includes bribery and undue influence committed by a third party and with the knowledge or authority of the candidate. In the second, the knowledge or authority of the third party is not an essential element of the charge where an illegal practice is alleged. The trial judge held that in the second situation, the Petitioner failed to plead the illegal practice was committed with the knowledge or authority of the candidate.
    
53. With respect, the trial judge erred. We agree with the respondents’ contention, that in the second situation in s. 215 (3) (b) of the Organic Law, the petitioner need not plead the illegal practice was committed with the winning candidates’ knowledge or authority.
    
54. The error is insignificant. It does not cure the serious defects in the whole of the pleadings. First, the pleadings were verbose and confusing. This ground like other grounds suffers from chronic deficiency in poor drafting, ambiguity and lack of clarity. The precise nature of the issue is buried in longwinded, vague statements of allegations.
    
55. Besides, the Applicant failed to plead the two essential elements of s. 215 (3) of the Organic Law which requires the petitioner to allege and prove the illegal practice is such that the election result or return was affected and that it is just that the winning candidate be declared not duly elected or that the election should be declared void. The pleading of these two requirements is succinctly put by the Supreme Court in, Kikala v. Electoral Commission(supra) in this way;
    

“As the illegal practices were alleged to be committed by persons other than the candidate and without the candidate’s knowledge or authority and were ‘other than bribery or undue influence or attempted bribery or undue influence’ it was necessary to plead the two matters that must be proven, given the nature of the allegations, under Section 215(3)(a) and (b) Amet v. Yama (2010) SC.1064, Karani v. Silupa (2003) N2385, Kubak v. Trawen (2012) N4992. These two matters should have been pleaded in a clear and concise manner;

➢ that the result of the election was likely to be affected by the illegal practice alleged committed by the person (other than the candidate); and
➢ that it is just that the candidate should be declared not to be duly elected or that the election should be declared void”.

56. The fourth ground has no merit. It is dismissed.
    

GROUND 5.5 - Facts not evidence

57. This ground states, that the National Court erred in holding that the Applicant should have pleaded the names of persons who witnessed the alleged illegal practices, errors or omissions, such as marking of ballot papers by Presiding officers, Luke Ipakan and Mark Nai. This followed from the findings of the primary court at paragraph 44 on pages 33, 34 of the Review Book, that;
    

“It is abundantly clear from the case law authorities cited and quoted above that on any illegal practice or errors and or omissions, names of persons ought to be stated in pleadings. If it is true that Mr. Ipakan and Mr. Nai marked certain ballot papers, the pleading does not identify who witness the markings of such ballot papers: Dick Mune v. Anderson Aigiru (1998) SC 590, Sir Pita Lus v. Gabriel Kapris (2003) N2326, Francis Koimanrea v. Alois Sumunda (2003) N2421.

58. And at page 34 paragraph 45, the trial judge held;
    

“Reading paragraphs 7-19 of the petition, the pleadings do not contain any material facts showing if there was any objection made at the polling booths by scrutineers for the petitioner for wrongful inclusion of the 864 votes pleaded in paragraph 19 v in the Petition”. (SIC)

59. The Applicant’s contention is, that s 208 (a) of the Organic Law requires the Petitioner to only set out the facts relied on to invalidate the election or return, not the evidence. The names of persons who witnessed the alleged acts or omissions are matters of evidence. We agree to some extent.
    
60. The real difficulty in the Applicant’s position is the drafting of the facts alleged in paragraphs 7 to 19 of the Petition. The allegations are flawed, inconsistent and confusing. For instance, the Petition stated in paragraph 11 that on 28/6/2012 two electoral officials, Messrs Ipakan and Nai illegally marked ballot papers for Tombaip Ward of Maip Mulitaka LLG, Lagaip-Pogera Electorate at Mulitaka Station Lodge between 7.00am and 8.00am. Then paragraph 13 alleged to the contrary, that on the same date, (28/6/2012) the electors were informed, the ballot boxes for the three polling places in the Tombaip Ward had been hijacked in the night and the ballot papers were illegally marked. The next paragraph 14 added further confusion. It alleged that polling was not conducted for electors of Tombaip 1 & 2 and Tombaip Ward. Then, in paragraph 15 the Petition stated, that ballot boxes for Tombaip 1 & 2 were admitted for scrutiny at count 77 (400 votes) and the ballot box for Tombaip admitted for scrutiny at count 110 (463).
    
61. These purported statements of facts alleged three sets of scenarios – (i) votes were illegally marked in the morning; (ii) there was no polling; (iii) compromised ballot boxes were admitted for counting of ballot papers. The primary court dealt with this issue as stated in paragraph 58 above.
    
62. The Applicant cannot have it both ways. He cannot say there was no polling as the ballot boxes were hijacked, and at the same time allow both polling and admission of the ballot boxes for counting without dispute. The pleadings are inferentially in the alternative. This is impermissible.
    
63. The ambiguity and confusion in pleading of facts is compounded with a statement, that before polling, voters were informed of election irregularities by electoral officials and other persons. But then the Petition did not allege any dispute being raised at the polling or at the scrutiny of votes. Such course if taken would enhance coherence and consistency of allegations.
    
64. Furthermore, when the charges are framed, as in paragraphs 17, 18 and 19 of the Petition, that the voters were denied the right to vote, it would be necessary to plead the material facts pertaining to the circumstances surrounding the ‘no polling’ allegation including the identity of a person or persons affected or the circumstances in which the person (and others) found themselves being unable to exercise their right to vote.
    
65. When alleging denial of the right to vote, it is not necessary nor is it a material fact to name a person or every person of voting age. The essential characteristics of the eligible voter(s) which must be identified and pleaded as a material fact is that he was/is a registered voter. And it would be sufficient to name one registered voter and give the number of registered voters to show the election result or return would likely be affected.
    
66. This ground is not sustained. It is dismissed.
    

GROUND 5.6 - Irrelevant facts

67. Ground 5.6 suggests, the primary Court erred in holding that the Petition did not state whether an objection was made at the polling about the wrongful inclusion of 864 votes pleaded in paragraph 19(v) of the Petition. This contention arose from the ruling in favour of the second ground of the objection that the pleadings in paragraphs 7 to 19 do not disclose facts showing any objection raised at the polling booths by scrutineers for the Petitioner against wrongful inclusion of the 864 votes.
    
68. The Applicant’s case is that the Petition alleged deliberate unlawful conduct of Presiding Officers, such as refusing to allow voters to cast their votes, and counting of votes which were not lawfully cast. Whether an objection was made at the polling booths by scrutineers for the Petitioner is not a material fact going to the misconduct alleged. The same conduct when committed by an electoral official can constitute both an illegal practice, and an error or omission.
    
69. We repeat our observations in the preceding paragraphs above. On page 34 of the Review Book, at paragraph 45, the trial judge referred to the whole of paragraphs 7 to 19 of the Petition. In our view, the trial judge was entitled to raise the issue of no objection being pleaded. This was prompted by the revelation in those paragraphs that prior to polling, voters were informed of illegal markings of ballot papers. The stage was then set to object to conduct of voting and scrutiny of votes. That is logical and consistent with common sense. The trial judge did not err in raising the bar on pleading material facts where the whole of the paragraphs appear to tell an incoherent and incomplete afterthought story.
    
70. As seen in paragraphs 17, 18, and 19, the Petition complained that the ballot boxes should have been rejected and not admitted to the counting. They purportedly raised error and omission on the part of an electoral officer in failing to perform a lawful duty pursuant to s. 218 of the Organic Law. This is confusing. The returning officer at scrutiny would not be aware of any dispute over the irregularity of polling unless objections are raised at the admission of the ballot box(es) for scrutiny. It is highly probable that the ballot papers were counted because there was no dispute raised. It is incredulous to plead in paragraph 19 (v) that 863 votes from two ballot boxes should have been excluded from counting without protest against the integrity of the ballot boxes.
    
71. Furthermore, if it is alleged as in this case, that there was no polling and that ballot papers were illegally marked, it follows that the petitioner must allege error and omission on the part of the Returning Officer in dealing with objections raised when he admitted the ballot boxes for counting. The electoral officials can commit the error by not considering or improperly considering objections raised at counting. If an objection was raised, it is pertinent to allege that the returning officer erroneously dismissed the objection.
    
72. We reiterate it is untenable to plead there was no polling, or polling was flawed and also plead, there was scrutiny without objection. The two opposites cannot co-exist. Alleging facts in that manner is tantamount to pleading the alternative. That is not permissible. This ground has not been made out.
    

GROUND 5. 7 - Error as to what was pleaded

73. Ground 5.7 of the review is extremely broad and confusing. It reads;
    

“The petition correctly pleaded the winning margin, and pleaded in respect of each illegal practise, error or omission, the number of votes in issue, which exceeded the winning margin. The petition sufficiently pleaded how in respect of each illegal practise the election was likely to be affected (under s 215 (3)), and how each error or omission did affect the result of the election (s 218(1)). The National Court erred in so far as it found that such matters had not been pleaded.”

74. In keeping with the intention of s.215 (3) of the Organic Law, the petitioner ought to have pleaded the two essential elements namely, the results were likely to be affected and it is just that the winning candidate be declared not duly elected. There is nowhere in the Petition it was pleaded or is demonstrated by facts that it is just that the first respondent be declared not duly elected.
    
75. We also accept the respondents’ contention that this ground has not set out in a clear and precise manner, which parts of the Petition relate to s. 215 (3) of the Organic Law wherein the trial judge erred. The material facts needed to be pleaded are either missing, incomplete or confusing in many respects. We refer to some of those deficiencies in the pleadings.
    
76. Paragraphs 43, 44, 45, 62 of the petition have blank spaces on the alleged number of votes affected. References to paragraphs in the petition are also confusing. For instance, paragraphs 48 and 50 in summing up allegations of election irregularities refer to, “ballot boxes referred to in paragraph 33.” However, paragraph 33 only relates to polling at, “Pokolip,” Maip Mulitaka LLG in Lagaip-Porgera Electorate. And the figure, 36,266 being the total number of votes alleged at paragraphs 48 and 50 is inconsistent with the figure 700 ballot papers in paragraph 33. This confusion is compounded when the same figure, 36,266 alleged in paragraphs 48 and 50 were also assigned to other LLG locations in the same electorate.
    
77. Other references to paragraph 33 were made in paragraphs 53 and 54 of the Petition. Paragraphs 53 and 54 are placed under allegations concerning Kandep Open Electorate while paragraph 33 only concerns polling at Pokolip. Also, the figure 36,266 pleaded in paragraphs 48 and 50 was repeated in paragraphs 53 and 54 in relation to polling at a different electoral area.
    
78. Further misleading and confusing references/cross-references are found in paragraphs 55, 57, 59, 64 of the Petition where paragraph 28 was mentioned for points of reference on allegations of excess ballot papers in ballot boxes for Kandep, Wabag and Wapenamanda. Paragraph 28 is of no assistance. It was an introductory statement on polling at Pokolip.
    
79. This ground of review lacked substance. It is dismissed.
    

GROUND 5.8 - “Just” not a material fact

80. Ground 5.8 in brief states that the trial judge erred in holding that the Petition should show that it would be “just” that the successful candidate should be declared not duly elected or the election declared void.
    
81. The Applicant’s contention is that the relevant requirement under s 208(a) of the Organic Law is to “set out the facts relied on to invalidate the election or return”. Counsel, Mr Molloy argued that, whether a matter is “just” is (a) a conclusion, and (b) a question of mixed fact and law. The Petitioner is only required to comply with sections 208 and 209 of the Organic Law. The court is not deprived of jurisdiction and a petition is not incompetent, for failure to plead in the petition a conclusion of mixed fact and law. The Petition did disclose facts constituting illegal practice which, if true, could lead the court to conclude that it was just that the successful candidate should be declared not duly elected or the election declared void.
    
82. The Applicant’s contention is flawed. It flies in the face of authoritative case law on the proposition that when one is alleging illegal practice under s. 215 (3) of the Organic Law, one must plead that it would be “just that the winning candidate be declared not to be duly elected or that the election be declared void.” It is now settled that where illegal practices were alleged to be committed by persons other than the winning candidate it is required to plead that the result of the election was likely to be affected by the illegal practice and further that it is just that the candidate should be declared not to be duly elected or that the election should be declared void. See, Kikala v Electoral Commission & Anor (supra); Sir Arnold Amet v Peter Charles Yama (2010) SC 1064.
    
83. We accept the respondents’ argument that the facts to demonstrate how it is just, must be pleaded especially where there are no allegations of illegal practice against the winning candidate and even where the illegal act is committed without his knowledge or authority. This application is meant to give some fairness to the winning candidate who had no hand in the illegal practice. In addition, because the two requirements must be read conjunctively, the pleading of facts supporting only one condition may not meet the requirement of s. 215 (3) of the Organic Law. This ground has not been made out.
    

GROUND 5.9 – Error in reading paragraph in isolation

84. Ground 5.9 states that the National Court overlooked the facts pleaded in paragraphs 20 to 25 of the Petition while paragraph 26 (and paragraph 27) simply tied those facts into the Organic Law provisions. This contention arises from remarks the trial judge made after referring to the relevant provisions of the Organic Law at paragraph 53 on page 37 of the Review Book as follows;
    

“Paragraph 26 of the petition pleads the law but does not plead the relevant facts as to how the illegal practices, errors or omissions were committed at Lumbapes Ward of Maip Mulitaka Local Level Government, Lagaip Porgera Electorate.”

85. Paragraphs 20 to 27 of the Petition raised allegations of illegal practices, errors and omissions during polling at Lumbapes Ward of Maip Mulitaka LLG, Lagaip-Pogera Electorate. The allegations are based on the same chronology of events in paragraphs 7 to 19 of the Petition in relation to polling at Tombaip 1 & 2 and Tombaip Ward of the same Maip Mulitaka LLG. We repeat what has been stated earlier concerning the pleadings in paragraphs 7 to 19. The factual allegations in the Petition were badly drafted and superficial.
    
86. The material fact of relevance is that polling was not conducted at Lumbapes. This was pleaded in paragraph 24 of the Petition. In the preceding paragraph 23, it was stated that the electors were informed the ballot box and ballot papers had been marked at Maip Lodge. Paragraph 25 asserted that the ballot box was presented for counting at Count 96. Paragraph 26 contained the actual charge and allegations of violations of –
    
    • ➢ section 130, 136 and 138 of the Organic Law
    • ➢ section 110 (1) of the Criminal Code
    • ➢ section 50 (d) of the Constitution
      
87. The core material facts were not pleaded in relation to each different charge of illegal practice and charges of errors or omissions. The charges are lumped together at paragraphs 26 and 27, supported by conflicting and confusing statements of fact.
    
88. Furthermore, because the irregularity of voting had been known from the beginning, we agree with the respondents that the applicant should plead material facts on objections taken at the counting and the erroneous manner in which the returning officer dealt with the disputed ballot boxes. Besides, the applicant failed to plead that it is just that the winning candidate be declared not duly elected. We iterate that the pleading amounted to alternative pleading. This ground for review is dismissed.
    

GROUND 5.10 - Material facts pleaded

89. Ground 5.10, drafted in blunderbuss, verbose and argumentative fashion failed to set out with brevity and clarity the precise nature of the review ground. One has to shift through half a page of longwinded statements to discern the purported error by the trial judge. The Applicant’s written brief of argument is of some assistance in unravelling the rambling and confusing ground:
    

“It was alleged a named Presiding Officer handed out between 800 and 1000 ballot papers to supporter of the first respondent who took the ballot papers and marked them. It was also alleged that the Presiding officer retained some ballot papers which he signed and marked and placed in the ballot box. It was alleged that electors were chased away and not permitted to vote.

The National Court said the petition failed to name the first respondent’s supporters. That was an unrealistic requirement, and also irrelevant, particularly in respect of the allegation against the Presiding officer.”

90. The ground of review is misleading and confusing. It referred to paragraphs 35 to 36 of the Petition as setting out the material facts concerning Yaramanda Ward. On the other hand, paragraph 35 referred to 700 votes for Pokolip Ward and only paragraph 36 concerns polling at Yaramanda. The ground for review is also misconceived for a number of other reasons;
    
    1. The petition failed to disclose the number or approximate number of votes allegedly tainted which would likely affect the result of the election;
    2. The petition failed to name one or more supporters of the first respondents who allegedly marked ballot papers outside lawful process or name a voter or number of voters denied the right to vote;
    100. The petition failed to consistently plead any objection against the ballot boxes being admitted for scrutiny of the ballot papers.
    4. The petition failed to plead the facts supporting the element of s. 215 (3) that it would be “just” that the winning candidate be declared not duly elected or that the election be declared void.
       
91. We repeat that where an election petition pleads, illegal practices, errors and omissions committed at polling are known to many people; it follows as a matter of consistency to plead the errors and omissions committed by electoral officials in dealing with any objection against admission of the ballot box for counting at scrutiny. One cannot have it both ways. One cannot say free voting at polling was openly and deliberately tainted by illegal practices, errors and omissions, and at the same time allow the ballot boxes to be admitted for scrutiny of the ballot papers.
    
92. This and other instances of pleadings we have earlier dealt it are examples of wishful perceptions based on hindsight and speculations. Such pleading of peripheral issues without pleading such logical, consequential matter as raising objections against compromised polling is detrimental to the petitioner’s case because it leaves it open to infer a “fishing expedition” and collusion. The court ought to guard against such hindsight pleadings as it can only frustrate the noble presumption that the people have made their popular choice in a free and democratic election process.
    
93. The material facts have not been pleaded in this vague and confusing ground of review. It is dismissed.
    

GROUND 5.11 - Petition misconstrued

94. Ground 5.11 is against the dismissal of paragraphs 40 to 65 of the Petition. As is common throughout the body of the application for judicial review, the ground is buried within longwinded, argumentative statements.
    
95. In paragraphs 42 to 46 of the Petition, the Applicant seemed to allege, that particular ballot boxes at certain locations contained a number of ballots papers in excess of the number of enrolled voters. This resulted in a discrepancy of tens of thousands. The trial judge dismissed those paragraphs having formed the view that the Applicant did not intend to allege that the error or omission was done with the knowledge or authority of the winning candidate. The Applicant countered that the trial judge misread and misconstrued the pleadings and that the trial judge’s view was contrary to case law.
    
96. Our earlier observations and rulings on the issue of “knowledge” and “authority” extend to this ground. We have examined the relevant facts pleaded in paragraphs 42 to 46 of the Petition on this aspect. The allegations are too general. They failed to name the electoral official who allegedly committed errors and omissions at polling. This is contrary to s. 218 of the Organic Law which requires by implication, naming of alleged electoral office offenders for good reasons that it will inform the opposing party to prepare and respond to the allegation. The necessity to plead the names of the polling officials in this case and what they did or omitted to do is crucial. This is because by operation of law, it is incumbent on public officials to perform their public duties in compliance with set procedures. In this case, any allegation of failure to carry out a public duty in dealings with electoral matters is an error or omission for the purpose of s. 218 of the Organic Law.
    
97. We again repeat our earlier observations on the paragraphs in question that they contained blank spaces for figures to support the element of s. 215 (3) of the Organic Law that election results are likely to be affected. The primary court did not misconstrue the allegations in the Petition. It is the vague, imprecise and incoherent drafting of the material facts for each charge read individually or as a whole, that make it confusing. This ground is dismissed.
    

GROUND 5.12 - Realistic approach to pleading – Excess votes

98. This ground states in respect of paragraphs 42 to 65 of the Petition, that the National Court erred in stating, the Petition must plead how the excess ballot papers “got themselves into the ballot boxes” and in holding that the petition is defective in that “no persons have been named or pleaded to have caused or aided in accumulation of such excess ballot papers”.
    
99. The Applicant submitted that the conduct complained of occurred at different locations and by its nature was secret and clandestine. The “excesses” only became apparent when the votes were counted. It was sufficient in the circumstances to plead the manifest discrepancies and allow inferences to be drawn from the evidence at the trial. It is unrealistic and unjust to require a petitioner to plead such facts that obviously are not within his knowledge.
    
100. The Applicant’s argument is flawed. It misrepresented the facts. Paragraphs 42 to 65, pleaded that the ballot boxes from Kompiam-Ambum; Lagaip-Porgera; Kandep; Wabag and Wapenamanda electorates contained votes in excess of the total number of registered electors in each electorate.
     
101. Upon a holistic view of the Petition from the start of paragraphs 7 to 42 to 65 inclusive, it is abundantly clear free voting at polling places mentioned were tainted by allegations of –
     
     • Ballot boxes being hijacked,
     • Ballet papers illegally marked,
     • No polling because voters were chased away.
       
102. Voters at those locations in question would have been aware of purported illegal practices, errors or omissions because the Petitioner pleaded that the voters were informed before polling. If that were so and the illegal practices, errors or omissions were public knowledge, this is contradicted by absence of pleading any objection or dispute at polling or scrutiny of votes by the petitioner’s scrutineers. The Applicant can only have one or the other. He cannot allege irregularity of voting and counting and at the same time allow tainted votes to be counted.
     
103. We repeat our observations and conclusions on similar issues that are raised under Ground 5.11 and also 5.4 and 5.9 of the Review – in particular, the inadequacies of the pleading. We add, it is outrageous to say, the “excesses only became apparent when the votes were counted.” The purported irregularities of polling set the foundation for excesses in voting. This manner of pleading is tantamount to a fishing expedition. Furthermore, the Petition failed to lay definite specific charges with naming or otherwise identification of the perpetrators of the crimes complained of and what they did.
     
104. This ground of the Review is dismissed.
     

GROUND 5.13 - Paragraphs read in isolation

105. Ground 5.13 has other grounds drafted into one. In a broad sense, the Applicant’s contention is that the trial judge erred in failing to read paragraphs 66 to 77 of the Petition together with paragraphs 78 to 83. Paragraphs 66 to 77 set out alleged facts surrounding suspension and resumption of counting. The ensuing paragraphs alleged that the declaration of the First Respondent was made by a person who had no authority to make the declaration.
     
106. The Applicant submitted that the Petition in paragraphs 66 to 77 pleaded the suspension and then the resumption of counting was carried out in a shambolic fashion. When read together with paragraphs 78 to 83, it will support the charge that the declaration was made contrary to s 175(1) of the Organic Law by a person who lacked the authority to make the declaration. The National Court incorrectly confined itself to paragraphs 66 to 77. Mr Molloy also submitted that the trial judge erred in stating that the pleading failed to show if anyone acted with the authority or knowledge of the first respondent or on his behalf as there is no requirement to say who particular persons supported. It was not necessary, and it is not intended, to allege that anyone one acted with the knowledge and authority of the first respondent. The Court further erred in that if the declaration was unlawful then that cannot be an immaterial error.
     
107. The crux of this ground is the declaration of the winning candidate by a person lacking the authority to do so. It concerns the allegations of error or omission on the part of electoral officials. The law is clear under section 218 (1) of the Organic Law, that immaterial errors will not void an election if it does not affect the results.
     
108. We agree with the respondents. There is no utility in pursuing this ground. It will not affect the results of the elections. Where legitimate votes are cast, and there is no dispute at counting, and a final votes tally is posted with an eventual winner, immaterial errors or omissions concerning declarations or return of the writ should not upset the election results. That is the rationale behind s. 218(1) of the Organic Law which vests in the National Court, the powers to declare a candidate duly elected who was not returned as elected.
     
109. This ground is dismissed.
     

Conclusion

110. The application for judicial review on the whole is convoluted and confusing due to bad drafting, riddled with longwinded argumentative statements that knit-picked every conceivable error, some contravening the principles governing judicial review applications. The pleadings of material facts also suffered from the same chronic drafting deficiencies. Consequently, the whole of the petition and the substantive grounds for review were in many areas tortuous, vague, illogical and confusing. The application is without merits. We make the following orders:
     
     1. The application for judicial review is refused. It is dismissed.
     2. The applicant to pay the costs of the respondents, to be taxed if not agreed.
     100. The Registrar shall forthwith release the security deposit of K5, 000.00 to the respondents to be shared in equal portions.
          

_______________________________________________________________
Young & Williams Lawyers: Lawyers for the Applicant
Mawa Lawyers: Lawyers for the first Respondent
Niugini Legal Practice: Lawyers for the second Respondent