Hagahuno v Tuke [2020] PGSC 105; SC2018 (2 October 2020)

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Waigani: Kandakasi DCJ, Kirriwom J, Mogish J, Manuhu J and Makail J
2020: 22^nd July & 02^nd October

ELECTIONS –review by Supreme Court of decision of National Court on an election petition – Constitution, Section 155(2)(b) – whether trial judge erred in upholding objection to competency.

ELECTIONS – requirements of s 208 of the Organic Law on National and Local-Level Government Elections – whether “self-employed” is an adequate statement of attesting witness’s occupation – whether petition provided adequate details of alleged bribery by or on behalf of winning candidate.

ELECTIONS – petitions –s 217 of the Organic Law on National and Local-Level Government Elections: real justice to be observed – whether applicable to hearing and determination of objection to competency of a petition.

The applicant applied under s 155(2)(b) of the Constitution to the Supreme Court for review of the dismissal by the National Court of his petition against the first respondent’s election. The applicant was granted leave to review two aspects of the National Court’s decision, which was that the petition failed to meet the requirements of: (a) s 208(d) of the Organic Law on National and Local-Level Government Elections in that one of the attesting witnesses inadequately stated his occupation as “self-employed”; (b) s 208(a) of the Organic Law in that the petition, while alleging seven instances of bribery for purposes of s 215 of the Organic Law, was confusing, ambiguous and lacking particularity.

Apaso Oibotee v Benny Allen (2013) N5155
Bluewater International Ltd v. Roy Mumu (2019) SC1798
Bryan Kramer v. Nixon Duban (2013) N5231
Dawa Lucas Dekena v. Nick Kuman (2018) 7472
Delba Biri v. Bill Ninkama [1982] PNGLR 342
Dr Bob Tawa Danaya v. Ati Wobiro [2013] SC 1292
EP 73 of 2003 Benias Peri v. Nane Petrus Thomas and Andrew Trawen Acting Electoral Commissioner and the Electoral Commission (unreported decision of 20/4/2004)
Fairweather v Singirok [2013] SC1923
Francis Koimanrea and Anor. v The Electoral Commission and Paul Tiensten (Unreported, EP No. 1 of 2002, 13/3/03)
Ganasi v Subam [2013] SC1277
George v. Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 447
Ginson Saonu v. Bob Dade (2004) SC 763
Gordon Wesley v. Isi Henry Leonard (2016) SC1477
Holloway v. Ivarato [1988] PNGLR 99
Inakambi Singorom v. John Kalaut [1985] PNGLR 238
Jimson Sauk v. Don Polye (2004) SC769
Karani v. Silupa (2004) N2517)
Karo v. Kidu [1997] PNGLR 28
Kerry Lero trading as Hulu Hara Investments Ltd v. Philip Stagg (2006) N3950
Lovika v. Malpo (2019) SC1895
Lucas Dekena v. Nick Kuman (2018) SC1744
Ludger Mond v. Jeffery Nape (2003) 2318
Luther Akisawa Wenge v. Kelly Naru (No 2) [2013] N5123
Mapun Papol v. Antony Temo and the Electoral Commission [1981] PNGLR 178
Mathias Ijape v. Biri Kimisopa (2003) N2344
Micah v. Stuckey & Electoral Commission [1998] PNGLR 151
Michael Kuman v. Digicel (PNG) Ltd (2017) SC1638
Michael Sapau v. Parkop Posangat (2013) SC1256
Neville Bourne v. Manasseh Voeto [1977] PNGLR 298
Nigel Agonia v. Albert Karo [1992] PNGLR 463
Nomane v Mori [2013] SC1242
Paru Aihi v. Moi Avei (2003) SC720
Paru Aihi v. Peter Isoaimo (2013) SC1276
Peter Charles Yama v. Jerry Singirok& Electoral Commission (2020) SC1982
Peter Waieng v. Tobias Kulang (2013) Unreported
Peter Wararu Waranaka v. Gabriel Dusava (2009) SC980
Peter Wararu Waranaka v. Richard Maru (2018) N7346
Philip Kikala v. Electoral Commission and Nixon Koeka Mangape (2013) SC1295
Philip Takori v. Yagari & Ors (2008) SC 905
PNG Bible Church Inc v. Carol Mandi (2018) SC1724
Powes Parkop v. Wari Vele (No 1) (2007) N3320
Puaria v. Lera (2013) N5148
Reference by the East Sepik Provincial Executive (2011) SC1154
Reference by the Public Prosecutor and in the Application of Opai Kunangel Amin [1991] PNGLR 1
Reference pursuant to Constitution, Section 18(2) Re Jurisdiction of the Leadership Tribunal (2019) SC1852
Sali Subam v. Aide Ganasi (2012) N5868,
Sandy Talita v. Peter Ipatas (2016) SC1603
Siaguru v. Unagi [1987] PNGLR 372
Special Reference by the Attorney-General pursuant to Constitution, Section 19 (2016) SC1534
Special Reference pursuant to Constitution s 19(1) Special Reference by the Ombudsman Commission of PNG (2019) SC1879
Steven Pirika Kamma v. John Itanu (2007) N3246
Tony Puana v. Joseph Lelang [2013] Unreported
William Hagahuno v. Johnson Tuke and Electoral Commission of PNG [2019] EP 52 of 2017
William Powi v. Bernard Peter Kaku (2019) SC1856

Mr. W. Hagahuno, Applicant in person
Mr. P. Mawa, for the First Respondent
Mr. M. Ninkama, for the Second Respondent

1. KANDAKASI DCJ: This Court has been specifically empaneled at the request of the parties to consider the conflicting approaches, some liberal and some strict, by both the Supreme and the National Courts (the Courts) in relation to election petitions and settle the law.

2. My learned brother Kirriwom J, whose opinion I have had the privilege of reading, highlights some of the approaches in the context of the issues presented in this case. I agree with his Honour that the application before us should be upheld but with the formal orders as those proposed by Makail J granted for the reasons they respectively give in most respects, subject to the comments I will shortly add.

3. The background and the parties’ arguments with the issues presented are well and sufficiently covered in my learned brother Kirriwom J’s opinion. For the purpose of my additional comments, I note the two main issues presented here are:

(1) Whether the word “self-employed” comes within the meaning of the word “occupation” as used in section 208(d) Organic Law on National and Local-level Government Elections (Organic Law on Elections)?

(2) Whether the pleadings in the petition in respect of bribery allegations sufficiently state the facts for the purposes of section 208(a) Organic Law on Elections?

4. These issues were first before the National Court. Central to the arguments of the parties and the Court’s determination was the issue of proper pleadings in election petitions. Adopting a strict interpretation of the provisions of s.208 of the Organic Law on Elections, the National Court held the term “self-employed” did not meet the requirement under s. 208 (d) of the Organic Law on Elections. Using the same approach the learned trial Judge held the pleadings on the allegation of bribery did not meet the requirement under s. 208 (a) of the Organic Law on Elections.

5. The decision of the Supreme Court in Delba Biri v. Bill Ninkama [1982] PNGLR 342, per Kapi DCJ, Los J, Hinchliffe J (as they then were) is the starting point. In that case, two questions were before the Court. They were:

(a) within two months after the declaration of the result of the election in accordance with s. 176 (1) (a) of the Organic Law on Elections; and

(b) after the period of two months following the declaration of the result of the election in accordance with s. 176 (1) (a) of the Organic Law on Elections?

(a) may allow an amendment of a petition which does not comply with all or any of the provisions of s. 208 of the Organic Law provided that the application for amendment is made within the period of two months after the declaration of the result of the election in accordance with s. 176 (1) (a) of the Organic Law.

(b) shall not allow and does not have power to allow an amendment of a petition after the period of two months after the declaration of the result of the election in accordance with s. 176 (1) (a) of the Organic Law.

“... it seems to us that the statute has clearly expressed its intention that a petition must strictly comply with s. 208. It is not difficult to see why. An election petition is not an ordinary cause (In Re The Norwich Election Petition; Birbeck v. Bullard (1886) 2 T.L.R. 273), and it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer. This is a sacred right and the legislature has accordingly laid down very strict provisions before there can be any challenge to the expression of the will of the majority....

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

An electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to s. 206 of the Organic Law on National Elections must comply strictly with each and every requirement of s. 208 of that Law.”

8. As can be seen, that decision was based on the premise that “elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority prefer.” It is therefore necessary to protect the results of such elections from individuals who want to challenge them by the laying down of “very strict provisions before there can be any challenge to the expression of the will of the majority.” That assumption was carried through in the decisions that followed at the highest by the Supreme Court in its earlier decisions as in Holloway v. Ivarato [1988] PNGLR 99, per Kapi DCJ, Los J, Hinchliffe J (as they then were) and in recent times as in its decision in Sandy Talita v. Peter Ipatas (2016) SC1603, per Batari, David and Bona JJ, which decision restated the assumption in the following terms:

“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.” (Underling mine)

9. Sadly however, this strict approach has resulted in many good petitions questioning the integrity of both the election process and its results have been getting knocked out technically at the objection to their competency stages. Some of these decisions, added more requirements to those under s. 208 of the Organic Law. This has meant that, the petitions have not been allowed to reach a hearing on their substantive merits and have therefore, been denied the opportunity of a hearing on their substantive merits. The strict approach has taken the nation to a point where the quality and integrity of both the electoral system and the election process with election results being seriously compromised.

10. As did my brother, Kirriwom J, I too jumped on the bandwagon with Judges who have taken the strict approach in a number of my own National Court decisions. This includes, amongst others, my decisions in Mathias Ijape v. Biri Kimisopa (2003) N2344; Ludger Mond v. Jeffery Nape (2003) 2318 and Peter Wararu Waranaka v. Richard Maru (2018) N7346. In those decisions, I went along with the Biri v. Ninkama line of authorities or trend without carefully looking at the foundation upon which the trend was built. I therefore, admit to unfortunately contributing to this sad state of affairs.

11. Adopting and applying the strict approach has resulted in serious allegations and in some cases actual instances of illegal production, hijacking and marking of ballot papers, to group voting, to deliberate misallocation of ballot papers at counting centers, to lack of proper scrutiny both at the polling and counting of votes, with many instances of bribery in some cases with the use of public funds and offices and other facilities, have now become common place and are getting repeatedly featured in elections and election petitions: See for example Paru Aihi v. Peter Isoaimo (2013) SC1276, per Kandakasi (as I then was), Yagi and Hartshorn JJ and Sandy Talita v. Peter Ipatas. In recent times, the serious compromise on the integrity of the election process and outcomes have now creeped into the nominations process. The recent five-member Supreme Court decision in Peter Charles Yama v. Jerry Singirok & Electoral Commission (2020) SC1982, is an example of a case on point. There, a convicted criminal serving his sentence namely, Mr. James Yali, was allowed to nominate. That was done deliberately by the Electoral Commissioner, despite clear and repeated binding legal advice to him from the then Secretary of the Department of Justice and Attorney General, the nation’s top legal officer.

12. Not only that, we have now also as a nation, reached a point where our election process has seen more than one declaration being made for one seat in Parliament. This has seen more than one person declared winner of an election, resulting in two people turning up in Parliament forcefully claiming the relevant seat in the current Parliament: See Lucas Dekena v. Nick Kuman (2018) SC17448 at para 4.

13. Integrity in an electoral and election process and election results would readily be said to exist, if the laws governing these processes are fairly, honestly and correctly applied in the way they should be by those obligated by law to do so. That would be from the Electoral Commissioner at the top to a counting officer to those who are aspiring to become elected leaders. Also, it takes a proper scrutiny and enforcement of the laws through the appropriate court challenges, the ultimate of which, are election petitions. Successful prosecution of election petitions in appropriate cases undoubtedly contributes to meaningfully keeping and upholding integrity in our electoral system, election processes and outcomes. For such successful prosecutions would send strong deterrent messages to those who might be inclined to or contemplate engaging in such illegal or improper conducts in an election. On the other hand, ready technical knockout of good petitions at the objection to competency stage prevents such scrutiny and enforcement of the law. Rather than encouraging, ensuring and safeguarding a maintenance of integrity in the electoral system and the election processes with their outcomes, a ready knock out at the competency stage encourages more breaches and hence seriously compromise the integrity of the election process which allows for people with questions on their qualification and integrity being allowed to hold elective offices.

14. Almost 38 years after the decision in Biri v. Ninkama, it is now apparent that the same foundation for the application of the strict approach to election petitions now no longer exist. Instead of protecting and keeping the integrity of the electoral system with its elections and declarations of election outcomes, the strict approach has unwittingly allowed for the opposite. Fortunately, this Court as early as the decisions in Jimson Sauk v. Don Polye (2004) SC769, per Sakora, Sevua and Gavara–Nanu JJ and Ginson Saonu v. Bob Dade (2004) SC 763, per Sevua, Gavara–Nanu and Davani JJ, took a serious look at the effects the strict approach was having on election petitions.

15. In the first case, the Court considered and endorsed the observations of Hinchliffe J., in his unreported judgment in the case of EP 73 of 2003 Benias Peri v.Nane Petrus Thomas and Andrew Trawen Acting Electoral Commissioner and the Electoral Commission (unreported decision of 20/4/2004) in this way:

“We are of the view that what has been happening progressively since the early election cases such as Delba Biri v Bill Ninkama (supra) is as aptly described by Hinchliffe J in another election case, when commenting on another National Court decision that had been relied on and referred to him:

‘With all respect to the trial judge, it seems to me that his requirements to satisfy s 208 (a) were so demanding that if every petition was dealt with in the same way then no petition would ever get past the competency stage. Having said that it would also seem to me that we are making it more and more difficult for petitioners to proceed when that was not the intention of the Legislature in the first place. Our Legislators obviously saw a situation where the petitioner could appear on his own petition without a lawyer and in fact if a petitioner did wish to be represented by counsel then it had to be with the leave of the Court (see s 222 of the Organic Law). Clearly the preparation on and presentation of a petition and the subsequent Court appearance was meant to be relatively uncomplicated and fairly simple. Unfortunately, we have allowed it all now to turn into a nightmare where even some of the most senior lawyers in the country are drafting petitions, which are being declared incompetent by our Courts and being struck out and thrown out. One wonders where it is all going to end. Clearly the differing opinion on where the material and relevant facts finish and where the evidence commences, needs to be cleared up, possibly by a five Judge Supreme Court. It must also not be forgotten that an election petition does not only involve two or three people as in a typical civil cause but it involves hundreds and sometimes thousands of people in the electorate. For those people to come to Court to hear an election petition then only to be told that it finished almost before it started because of what I consider to be technicalities must be extremely confusing and disappointing for those people who had come to Court to see that justice was done. In some cases, whether justice was ever done or not will never be known because the case was never heard.

16. After unreservedly and respectfully agreeing with and endorsing those sentiments and concerns of his Honour, the Court added:

“Because of the frequent nit-picking technical objections raised in the guise of real substantive issues of competency or jurisdiction (based either on s.208, s.209 and s.210 Organic Law, supra, or s.50 and s.103 Constitution), some very serious and wholesale irregularities, not to mention blatant illegal practices, at the campaign, polling and counting stages of an election more often than not escape judicial scrutiny and remedy. So much so that the Constitutional authority whose direct duty and responsibility it is to organize, conduct and complete free and fair elections jumps on the bandwagon, as it were, to suppress (or have struck out or dismissed) any complaints about or challenges to the conduct of the elections.

An election petition by its very nature challenges and questions the integrity of the electoral system and its process, and thus the validity of a particular election and its return. In the process the petition throws into question the efficiency and effectiveness of the Electoral Commission’s discharge of its duties and responsibilities under the Constitution. Thus, an election petition is not, and ought never to be considered, such a light matter.”

17. The Court went on to add by quoting with approval Sakora J’s (as he then was) comments in Francis Koimanrea and Anor. v The Electoral Commission and Paul Tiensten (Unreported, EP No. 1 of 2002, 13/3/03), where his Honour said:

“Another recurring theme in these discussions is the serious consequences from the results of elections because of the serious interests at stake. Thus, to challenge an election or its return under the Organic Law is not, and ought not to be considered such a light matter. It necessarily involves the questioning of the integrity of the electoral system and its processes. If elections are not held or conducted properly, regularly, according to law, public interest demands that such shortcomings, such pretence at regularity and validity, should not go without challenge and unremedied. Otherwise the entire electoral system and its processes would undoubtedly be held up to public ridicule and brought into disrepute. Citizens would lose respect for and confidence in their Constitution and its processes. Democracy as enshrined in the Constitution would degenerate into a total farce. It is in the public interest also that corrupt unscrupulous persons who manipulate the electoral system and its processes to assume leadership positions should not continue in such positions to the detriment of the country and its people.

Conversely, if the elections have been properly and regularly held or conducted, thereby according to the citizens, the eligible voters, a free and fair opportunity to elect their representatives, or be elected themselves, to public office, then public interest would demand too that such elections ought not be disturbed or overturned, or indeed questioned, on wild sensationalist, unmeritorious and unsustainable allegations . . . ”

“The Constitutional burden of organizing the machinery of an election, and particularly the poll and the count, rest, as has been repeatedly noted and emphasized over the years, entirely on the Electoral Commission (see, ss 126 and 127 Constitution, and s 5 Organic Law). Under the Organic Law, legal regulations and restrictions are provided to ensure as far as possible that election campaigns are fairly conducted. Bribery, treating and undue influence in the nature of duress are corrupt practices. Thus, to take such unmeritorious challenges to the competency of an election petition to their ludicrous extent, to countenance such challenges would mean that genuine legal/Constitutional challenges based on either the mandatory requisites under Organic Law (ss 208, 209 and 210) or the express limitation imposed by the Constitution (ss 50 (1) (a) and (b), and 103) would be stopped in their tracks, as it were, and irregularly elected candidates would assume office and perform or discharge public duties. Similarly, if a successful candidate were allowed to assume office when a petition against his election were attended by serious allegations of voting irregularities such as double or multiple voting, voting by unregistered voters, or by aliens, minors and convicted persons.

There is definitely, in our opinion, too much lawyering in the electoral process! There is too much unwelcome interference and influence by meddlesome legal eagles. The courts have a duty to be wary of these, and be ever mindful of the public interest that ought to operate both ways in election petitions. Because of the current climate of unnecessary and unmeritorious objections and challenges to election petitions, we must note that the election petitions in the late 1970s and early 1980s were never attended by the long drawn-out, interlocutory challenges and reviews upon reviews. These were straight-forward affairs that were dealt with by individual judges on circuits and disposed of speedily, both any preliminary issues as to Constitutional qualifications or otherwise, and the substantive allegations pursuant to the Organic Law.

Then in the 1990s the courts threw open their doors to all manner of applications and challenges. These quickly developed into what came to be described as objections to competency. Meritorious or not, everyone was heard, again and again on some invented grounds. We would respectfully describe the conduct of the election petitions then as an unmitigated disaster, though the eventual judicial determinations were conclusive of the issues and cannot be impeached here. So much so that these disastrous experiments of the 1990s led to the felt need to instill some order to the conduct and determination of election petitions.”

19. After these decisions of this Court, I became concerned over the correctness and appropriateness of the strict approach trend because of the adverse effects that approach has been having on election petitions and an elector’s right to challenge an election result, which is also a right granted by a Constitutional law. Given that, I opined that, attempts at stopping an election petition from getting to a hearing is in itself a serious matter too, which needs to be also considered and not just the need to protect an election outcome. I reasoned that, election petitions are necessary because of their “potential of ensuring and protecting the integrity of the election process at all times so there can be confidence in [the] election process.” This is why this Court in Sauk v. Polye said, “an election petition is not, and ought never to be considered, such a light matter.”

20. Subsequently, I began to notice as I did in my decision in Steven Pirika Kamma v. John Itanu (2007) N3246 that, a ready application of the principles enunciated by Biri v. Ninkama and those following it, has become stricter to the point that objections to competencies have become far too highly technical and, in some cases, purely nit-picking. In the process, the Courts at the instance of lawyers, have effectively built into s. 208 additional requirements. This decisions have been arrived at in almost total disregard of the requirements of other equally important provisions of the Organic Law such as s. 217 which obligates the Court to be “guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities or whether the evidence before it is in accordance with the law of evidence or not”.

21. Further, in Kamma v. Itanu, I expressed the view that, we have come to this result because of two important failures of lawyers and their clients as well as the Courts. I identified the two failures in these terms:

“First, we have failed to give any due and proper consideration to the intention of Parliament in excluding lawyers or legal representation in election petitions and the lack of prescription of how a petition should be pleaded and the requirements of s. 217 of the Organic Law. Secondly, we have failed to have a closer look at the particular wording in s.208 and s. 210 from which this trend has originated.”

22. Elaborating on the second of the two failures, I noted that, s.208 (a)of the Organic Law, merely requires amongst others “the facts relied on to invalidate the election return”. I then observed that this provision:

“...does not say for instances that there must be no inconsistency in the facts relied on or that the facts must be set in full or with much detail. We have reached the result we have thus far not because the legislation says it but because lawyers who are not supposed to be involved in election petitions as of right becoming creative without having regard to what the legislation is actually saying and the intention behind that, which has only recently been adequately elaborated by the Supreme Court’s decision in Jimson Sauk v. Don PombPolye (supra) and GinsonSaonu v. Bob Dade (supra) and the Courts ready acceptances of the lawyers’ making. What the Courts and the parties should be looking at is, whether the facts relied on to upset an election are stated in the petition sufficiently to disclose the fact alleged and not necessarily every single detail of or about the fact stated. Such details should be left for the trial or hearing of the petition as long as there is a clear statement of a fact of an illegality or, irregularity or, error or omissions which affected the results of an election.”

“Until the sound wisdom of the Supreme Court’s decision in Jimson Sauk v. Don PombPolye and GinsonSaonu v. Bob Dade (supra) becomes entrenched, we are in an environment in which respondents to election petitions with the endorsement of the Courts have been pushing for a strict compliance of the requirement of s. 208 and requiring petitioners to do more than simply state amongst others the facts relied on. In so doing, no consideration has been given as to how a lay person as originally provided for could be expected to know and fully understand and apply correctly the rules of proper pleading.”

24. To that earlier discussion, I now add a couple of observations. Firstly, I accept that the requirements of s. 208 as well as 209 of the Organic Law are mandatory and must be strictly met because of s. 210. However, I do not accept that this necessarily means for instance, for the purpose of s. 208 (a) that, the facts relied upon must be strictly pleaded with particulars in the way lawyers who are properly trained and experienced in drafting and settling legal documents including, documents pleading a cause of action or a defence in court proceedings would, although that would be most helpful and should be encouraged. Instead, all that a petitioner is required to do is to state the facts disclosing one or more of the known grounds for voiding an election outcome and do what he or she is required to do by the rest of the provision from s. 208 (b) to (e) and meet the deposit requirement under s. 209. At the earliest, this Court’s decision in Holloway v. Ivarato assists in pointing out how the requirement to state the facts in s. 208 (a) could be met. There, Kapi DCJ with whom the other two members of the Court, Los and Hinchliffe JJ (as they then were) agreed said:

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

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

It would be an unreasonable rule to require the petitioner to set out all the evidence on which a petitioner may rely to prove the material facts...

I conclude that s 208 (a) only requires pleading of material or relevant facts which would constitute a ground and not the evidence by which those facts are to the proved. ...

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 estabish (sic). 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.”

25. In Micah v. Stuckey & Electoral Commission [1998] PNGLR 151, Kirriwom J, added clarity to how a fact must be stated for the purposes of s. 208 (a) by reiterating the point that the requirement is to set out sufficiently the relevant and or material facts relied on to invalidate an election because:“... each ground of a petition unlike in ordinary civil litigation...is a triable issue on its own and is capable of determining the success or demise of the petition.”

26. Clearly, the need to state the facts does not include a requirement to plead the relevant law, although doing so might assist the parties and the Court to help identify the relevant and applicable law. Attempts by both this and the National Court at requiring the law to be also pleaded as part of the facts have been met in recent times by this Court with disapproval. The decision in Gordon Wesley v. Isi Henry Leonard (2016) SC1477, per Salika DCJ, Sakora and Hartshorn JJ (as they then were), is on point. There the Court unanimously stated:

“The requirement under Section 208(a) is that a petition shall set out the facts relied on to invalidate the election or return. In our view Agiru v Mune (1998) SC590 sets out the correct law on this point which is that there is no requirement under Section 208(a) that a petition should plead the law that defines a ground for review. Biri v Ninkama [1982] PNGLR 342 stands for the proposition that in a petition relevant fact must be pleaded which constitute the grounds upon which an election is sought to be invalidated. ...In our view, a petition should not plead the law breached. It should be left to the Court to conclude what law has been breached. All that Section 208(a) requires is for the petition to plead material and relevant facts to support the grounds that the petition alleges.”

27. Secondly, I also do not accept that the legislature intended that a failure to so plead would by itself, render a petition incompetent and be open to the risk of dismissal for that reason except, in the clearest of cases in which there is a complete failure to meet one or more of the requirements under s. 208 (a) to (e) and s.209 by reason of the mandatory language in s.210. This is obvious from the fact that the legislature has included the provisions of s. 217 and 222 of the Organic Law. Section 222 excludes legal representation except with consent of the parties and or with leave of the Court while s. 217 obligates the Court “to be guided by the substantial merits and good conscience of each case.” This obligation is to be discharged “without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.” This provision is an expressed carrying over and incorporating into the election petition jurisdiction what is already provided for in the Constitution in s. 158 (2), which reads:

“In interpreting the law the courts shall give paramount consideration to the dispensation of justice.”

28. Challenging an election petition on the basis of a lack of proper pleadings and or a petition not being in the correct form comes under “legal forms or technicalities” which in my humble view, is expressly prohibited or excluded from any consideration by s. 217. Of course, this does not save a petition which fails to state at all any fact under s. 208 (a) that discloses a valid ground to void an election outcome or fails completely to meet any of the other requirements of s. 208 (b) to (e). For clarity, may I point out that, however hopelessly pleaded a petition might be, if the facts stated disclose a known ground for voiding an election and the petition on the face of it meets all the other requirements under s. 208 and s. 209, it would be sufficient for the purposes of s. 210, and that such a petition should be allowed to progress to trial without delay. Any argument against a petition of this type as being incompetent would constitute a technical issue, which is prohibited by s. 217.

29. Technical issues are common place in ordinary civil and criminal proceedings. In civil proceedings, specific provisions are made in the court rules such as those found in Order 8 of the National Court Rules which specifically require the facts disclosing a cause of action known to law to be pleaded succinctly with the relevant and necessary particulars. In certain kinds or types of cases, such as claims based on fraud and negligence, particulars are specifically required to be pleaded: See O. rr.29-36 of the National Court Rules. Despite having such specific requirements, it is also well settled law in civil cases that, a party should not be driven out of the judgment seat except in the clearest of cases, where for instance, no case known to law is disclosed. This means, the Courts must always seek to do justice on the substantive merits in each case and allow each party to have their day in Court: See Takori v. Yagari (2008) SC 905, per Kirriwom, Gavara - Nanu and Kandakasi JJ (as I then was); Bluewater International Ltd v. Roy Mumu (2019) SC1798, per Kandakasi DCJ, Pitpit & Dingake JJ and Kerry Lero trading as Hulu Hara Investments Ltd v. Philip Stagg (2006) N3950, per Kandakasi J (as I then was). Given that position of the law, amendments are readily allowed at any stage of a proceeding even after the conclusion of a trial but before judgment: See for example George v. Motor Vehicles Insurance (PNG) Trust [1993] PNGLR 447, per Woods J. This necessarily allows for a curing of a defect or obvious error or omission or clarify that which is already pleaded. Notwithstanding that position of the law, some litigants have been allowed to succeed purely on technical grounds more than on the substantive merits of a case in election petitions.

30. In my view, Parliament being fully aware of the above position of the law, made a deliberate decision in the case of election petitions to include the provisions of s. 217 given the provisions of s. 222 of the Organic Law. That provision was made by Parliament after having provided for the earlier provisions especially, the provisions of ss. 208, 209 and 210, which are the critical provisions on what must be in a petition. Out of these three provisions, s. 208 directly answers the question of what must be in an election petition while s. 209 adds the additional requirement of security deposit of K5,000.00 and s. 210 reinforces what is provided for in s. 208 and 209 for a valid petition.

(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).”

32. Unlike the National Court Rules, there is no specific requirement for instance, how for the purposes of s. 208 (a), a fact should be stated and whether that should be with particulars as is known in ordinary litigation. There can be no doubt therefore, as to why Parliament decide to then go onto provide for s. 217 and 222. Obviously, Parliament made a deliberate decision to empower the Court “to be guided by the substantial merits and good conscience of each case” and mandated the Court to discharge that duty or responsibility “without regard to legal forms or technicalities...” This was necessary because, it made provision for ordinary persons without any legal training and or experience to file petitions which in turn, is necessary for maintenance of respect and integrity in the electoral process and election outcomes by making the process of challenging election outcomes flexible and easier. That in itself, sends a strong message. The message is in two ways. The first is at the preliminary stage. The message is, a person who secures an election victory through bribery or such other illegal means or outside the due process provided for in the Organic Law will not be allowed to gain from it by a technical knockout through an objection to competency of a petition against such a person’ victory. The second is at the trial stage. The message there is, once a petition progresses to trial, the technical rules of evidence will not be applied against any evidence called in support of the petition.

33. It should follow therefore that, an objection to competency which raises technical issues is doing nothing more than inviting the Court to breach its obligation and or duty under s. 217. Sadly, our history of election petitions demonstrates more petitions being dismissed in total disregard of Parliaments intention and purpose behind including the provisions of s. 217. This has resulted in a shutting out of many petitions and petitioner at the very door steps of justice and denied them their right and opportunity to be heard on the substantive merits of the case “without regard to technical arguments” around the form of the petition, proper pleadings and or a failure to meet “the technical rules of evidence”. The foundation for that sad outcome was laid by the decision in Biri v. Ninkama which held that s. 217 does not apply until at the trial of an election petition.

34. In so doing, the Court decided to adopt and apply the following part of the decision in the matter of Mapun Papol v. Antony Temo and the Electoral Commission [1981] PNGLR 178, a decision on the National Court:

“... this provision [s.217] is not applicable in considering the preliminary point raised here. This provision becomes relevant only when it has been determined that there is a petition instituted pursuant to ss. 184 and 185 equivalent to ss. 208 and 209 of the Organic Law of the Regulation (as applied). This provision becomes applicable when the court is determining the merits of the case and all matters connected with the determination of merit. To read s. 193 of the Regulation [identical to s. 217 of the Organic Law] as applicable to this preliminary point is to bring it in conflict with the intentions of s. 186 [s. 210 of the Organic Law]. These two provisions appear in the same division. I do not think they are in conflict. It is a well settled principle of interpretation of statutes that an Act should be interpreted as a whole so that as far as possible the clauses are in harmony with one another; see Maxwell on the Interpretation of Statutes (12th ed. 1969), Ch. 9 'Construction to Avoid Collison with Other Provisions'. Sections 186 [s. 210 Organic Law] and 193 [s. 217 Organic Law] deal with different subject matters.”

35. Proceeding on that basis, the Court in Biri v. Ninkama was of the view that:

“It is quite clear to us that s. 217 of the Organic Law is only relevant when the National Court determines the merits of the case and when dealing with the evidence before it as relevant to the merits. It is a procedural section only: See Ithaca Election Petition; Webb v. Hanlon [1939] Q.S.R. 90.”

36. Neither the decision in Papol v. Temo nor the decision in Biri v. Ninkama had any meaningful regard to and or consideration of the provisions of s. 222 while considering ss. 217, 208 and 210 of the Organic Law. These decisions also did not have any careful regard to the intent and purpose of s. 222 and 217. In my decision in Kamma v. Itanu, I observed at paragraph 34 in relation to s. 217:

“There is nothing in this provision that indicates that it is applicable only at the hearing on the merits of the case. If that were to be the case, the legislature would have made it clear for instance by providing in the opening of that section or immediately after the words “The National Court shall” words to the effect “at the hearing on the merits of the case.” I am of the respectful view that the legislature did not make a mistake in its choice of words constituting the section. Reading as it is without adding onto it any more clearly demonstrates no restrictions in its application to election petitions. The intention of the legislature is very clear. Election petitions are intended to be simple throughout all aspects of an election petition and not to be bogged down with the usual technicalities that often apply in civil cases. The section with respect is not merely a procedural matter. Rather it’s an obligation imposed on the National Court. It is what must guide the National Court when dealing with an election petition. The National Court is obliged to be guided by the “substantial merits and good conscience of each case without regard to legal forms or technicalities”.

37. Then, in the context of the case before me which amongst others, raised the issue of amendment, I noted s. 208 (e)of the Organic Law does not say anything about amendments to election petitions. What it does is, provide for an election petition to be filed within 40 days from the date of declaration of the results of the relevant election and for petitioners to do what the rest of the provision requires. In particular, I noted that, there is no provision in the Organic Law, which expressly prohibits any amendments to a petition after the expiry of the 40 days period. The restrictions were again introduced by the Supreme Court in Biri v. Ninkama. The Supreme Court reasoned:

“There is a long line of authority for the proposition that there can be no amendment to a petition after the expiration of the time limit, commencing with Maude v. Lowley (1874) [1874] UKLawRpCP 10; L.R. 9 C.P. 165. Then see Clark v. Lowley (1883) 48 L.T. 762, where the court indicated that an amendment would not be allowed where there was ‘a rigid limit’ of time for the presentation of the petition. In In re Norwich Election Petition; Birbeck v. Bullard (supra) the court indicated that if an election petition were an ordinary cause, probably an amendment introducing additional grounds might be allowed but the court was obliged to have regard to the limitation within which a petition must be presented. In Crafter v. Webster (1979) 23 S.A.S.R. 61, the Full Court of the Supreme Court of South Australia said at p. 63:

‘A rigid limit of time similar to that falling for consideration in the cases to which we have referred is provided in s. 170 (1) (e) of the Electoral Act (S.A.). In our view the mere fact that the Court has the same powers, jurisdiction and authority as a Judge of the Supreme Court presiding at the trial of a civil cause does not entitle the Court of Disputed Returns to allow an amendment after the expiry of the time limited for filing the petition. For the sake of completeness we refer to Cameron v. Fysh [1904] HCA 49; (1940) 1 C.L.R. 314, in which Griffith C.J. refused an application to amend a petition under the Electoral Act 1902 (Cth) upon the ground that if he were to allow the amendment he would ‘practically be extending the time for filing the petition’.’

Unlike the Electoral Act 1929-1976 (S.A.), the Organic Law contains no such provision that the National Court hearing disputed returns under s. 206 has the same power, jurisdiction and authority as it would have on the trial of a civil suit, so that the position in our jurisdiction is even stronger, that there can be no amendment by calling in aid such a provision as for example O. 32, r. 13 of the National Court Rules of Court which gives to a judge in an ordinary cause a discretionary power of amendment of any defect or error in any proceedings.

In our view, the National Court Rules can have no application to election petitions. The rules have no application if they are inconsistent with any provision contained in any statute relating to proceedings in any special jurisdiction of the National Court (see Application of Rules provision in The Rules of the National Court).

.... There is nothing in the Organic Law which adopts the application of the National Court Rules. The Organic Law, in setting out its own provisions in Pt. XVIII, Div. 1 (which are different in character from the rules), is clear that the rules can have no application. The law is to be found in the Organic Law and any regulations made under it.”

38. In response to the petitioner seeking to invoke s.155 (4) and s. 158 (2) of the Constitution, the Court after quoting each of these provisions said of s. 155 (4):

“...This would be giving a power to the court greater than the unlimited legislative power given to the Parliament by the Constitution. A fortiori, in our view, the court would not have the power to override the provisions of an organic law which is a constitutional law and even more so again to override the provisions of a constitutional law which is in mandatory terms.”

“It was submitted that failure to include an attesting witness’s occupation was a minor matter and that it would be unjust that a petition should fail for this reason and that accordingly there is or should be power to grant an amendment to cure the defect. But in our opinion the requirements of s. 208 reflect the special nature of electoral petitions. Those requirements are, as we have said, strict and mandatory and we think they serve, inter alia, or attempt to limit the frivolous petition and to ensure as far as is possible that the petition is genuine.

It is also our view that s. 158 (2) of the Constitution must mean the dispensation of justice according to law. It cannot mean the dispensation of justice in accordance with some notion of what is thought to be fair and reasonable to the exclusion of the stated intention of Parliament. In our opinion, the section means justice according to law and the law here is that as set out in a Constitutional law.”

40. Finally, the Court considered the provisions of schedule Sch. 1.16 and Sch. 1.1 of the Constitution and held that Sch. 1.16 is subject to Sch. 1.1. These provisions respectively read:

(1) Where in a constitutional law a time limit is imposed for the doing of an act (whether the provision is mandatory, directory or permissive, and whether it is positive or negative), and in a particular case it is not practicable to comply with that limitation, the period shall be deemed to be extended by whatever period is necessary to make compliance practicable.

(2) The operation of sub-section 1 is not excluded by a provision that unqualifiedly specifies a time limit or a maximum time limit.”

(1) The rules contained in this Schedule apply, unless the contrary intention appears, in the interpretation of the Constitution and of the Organic Laws.”

41. Having arrived at the conclusion that the Organic Law expresses a rigid time limit, the Court went on to hold Sch.1.16 was inapplicable. Then it ultimately concluded that, an election petition could be amended before the expiry of the time limit under s. 208 (e) and not after the expiry of that time.

42. After a careful consideration of the reasonings of the Supreme Court, I respectfully commented in Kamma v. Itanu:

“...First, the Supreme Court allowed itself to be influenced by the position taken in a number of English and Australian cases. In so doing, it did not have any regard to the marked difference in educational and sophistication levels of the peoples in England and Australia and those in Papua New Guinea. Even to this point, there are still far too many people in our country that are still illiterate and are not as well educated as those in England or Australia. There is therefore, bound to be mistakes or errors in the drafting and presentation of a petition in our Courts by an ordinary citizen, who is entitled to bring a petition to the exclusion of a lawyer. Surely, the legislature could not have intended that a petition should be defeated because of defects which in any other case can be cured by amendment, especially in the absence of any expressed exclusion.

31. Secondly, the Supreme Court spoke of the seriousness of an election petition but only from the point of view of ultimate winners of elections and those who might have supported him or her. It did not give any serious consideration to a petitioner’s right to challenge the results of an election that may be tainted by illegal practices such as bribery or undue influences or errors and omissions committed by electoral officials or others. That is a right that is granted by a Constitutional law. Such a challenge may represent not only the wishes of the petitioners and their supporters but might also be representative of a majority or if not a significant component of voters in an electorate. It therefore, requires a balancing act between two equally important considerations in order to do justice on the “substantial merits” of a petition and not be readily defeated purely on a technicality in light of the provisions of s. 217 of the Organic Law.

32. Thirdly, speaking of s. 217, in my considered view, the Supreme Court with respect also got it wrong. At page 346 of the judgment, the Court said:

‘It is quiet clear to us that s.217 of the Organic Law is only relevant when the National Court determines the merits of the case and when dealing with the evidence before it as (sic) relevant to the merits. It is a procedural section only: Ithaca Election Petition:Webb v. Hanton [1939] Q.S. R. 90.’

33. The Court did not fully set out the provisions of s. 217 and failed to fully discuss what the equivalent provision in the overseas cases was. It did not also say what the importance of that case was and why it was relevant and applicable in our case in the light of the provisions of s. 217. That provision states:

‘The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.’

34. [omitted to avoid repetition as the relevant part is already quoted at paragraph 35 in this judgment]

35. Fourthly, following on from what I have just stated above, I note that the Supreme Court did not with respect have regard to the fact that s. 208 or any other provision in the Organic Law does not expressly prohibit amendments of petitions filed within the required time limit. It also does not preclude the application of the principles governing the amendment of pleadings, a codification of which is in O 8 r 50 of the National Court Rules. I am of the view that, if the well accepted principles relating to amendment of pleadings were to be excluded, the legislature would have specifically provided for it but it did not. Simply because the legislature did not specifically exclude the application of these principles does not necessary follow that they do not apply. Instead, the well accepted position in law in such a situation is that, unless a principle of law that is of general application is specifically excluded, it applies.

36. Here, the legislature intended in terms of s. 217 for the election dispute resolution process to be simple and uncomplicated by legal form or technicalities or the technical rules of evidence. The aim is to enable a determination on the substantial merits of the case rather than on technicalities or simple curable mistakes in the way a matter is pleaded. Since there is no expressed prohibition against amendments of any sort in the Organic Law, and in appreciation of the points made in the decisions of the Supreme Court in Jimson Sauk v. Don Pomb Polye (supra) and Ginson Saonu v. Bob Dade (supra) I am of the view, with respect that, there is room for a petitioner to effect all necessary amendments for the purpose of determining the real questions raised by or otherwise dependent on the petition, or of correcting any defect or error in a petition. The only exception to that would be a case in which the amendment seeks to introduce a new ground after the expiry of the 40 days limitation under s. 208 (e). There is ample authority for this exception in the principles governing amendment to pleadings...

37. Finally, the issue of amendment in Delba Biri v. Bill Ninkama (supra) concerned a failure to include in the petition its attesting witnesses’ occupation. With all due respect, I note that, the Supreme Court failed to clearly distinguish between more serious omissions or failures to meet the requirements of s. 208 such as a failure to state an attesting witness’ occupation to a case of typographical errors or an omission of finer details of say a fact that has been otherwise clearly pleaded. The former is more serious because it is a specific requirement of s. 208 while the latter is not so serious because strictly speaking they may not offend against the requirement of the Organic Law but simply a slip or error of the person drafting the petition which does not seriously affect what is already pleaded by reason of which it could easily be cured by amendment in the light of the fact that, there is no specific and expressed prohibition against amending such defects in the petition. It is a total absurdity in my view, to put the two extremes of errors, one more serious than the other, in the same basket and allow a petition to be defeated even for the simplest of defects or errors or omissions contrary to the intention of s. 217 of the Organic Lawas discussed above, only because the Supreme Court and not the legislation prohibits any manner of amendment of election petitions after the expiry of the 40 days’ time limit.”

43. To the final point I now add, by way of clarification, this. In Biri v. Ninkama, there was a complete failure by the petitioner to state the occupations of the attesting witnesses. Correctly, the Court took the view that, that defect could not be cured by any amendment because the need to state the attesting witnesses’ occupation is a mandatory requirement under s. 208 (d). This is to be contrasted with a petition that attempts to disclose the attesting witnesses’ occupation. The decision of the majority of Amet CJ, Los, Injia and Sawong JJ (as they then were) in Paru Aihi v Moi Avei (2003) SC720 is on point. There, the Court in my now reconsidered view, correctly interpreted the word “occupation” as used in the context of s. 208 (d) of the Organic Law broadly to mean:

“...simply means one’s trade, profession, business or calling; things or activities one does for a living. A carpenter, lawyer, doctor, an actor or actress, engineer, politician, leader, judge are examples of one’s occupation. It cannot mean one’s place of origin such as Western Highlanders or New Irelander; a linguistic group such as Motuan or Engan; national status such as citizen or non-citizen, and racial origin such as Chinese or African and so on.”

44. Then applying that broad definition, the majority went on to give a broader meaning to the word “villager” which was used to describe the occupation of the attesting witness in that case. They noted that:

“The word “villager” has an ordinary meaning to which resort to learned anthropological texts, legal treaties and English dictionaries to ascertain its meaning is unnecessary. Any ordinary Papua New Guinean will tell you what this word “villager” means or entails. To us, a villager is a person who comes from or lives in the village and does all the things a villager living in the village would do to make a living – gardening, fishing, hunting, raising animals, planting cash crops, or simply lazing away and uses his wits to make a living off his relatives, etc. He is not engaged in any paid employment as those living in towns and cities. The Courts too have had no difficulty in accepting this word “villager” to refer to a person who lives in a village and is engaged in all these kinds of activities to make a living...

In our view, it is unrealistic to refer to a villager person by reference to any one particular trade or activity he engages in for his survival. For instance, on the one day, a person may mend the fence around his house, then go to the garden to plant or harvest crops, then go fishing, then attend to the pigs, then attend to his cash crops like coffee garden and so on. He may not be able to complete all these tasks in the one day and so he leaves some to the next day or the next week. The villager is the master of his own time and activity. So does every other villager who just about engages in the same kind of activity. It is unrealistic and impractical to introduce some artificial demarcations between a villager’s main activity and minor activities, his usual and unusual activities, or activities which occupy most of his time and which activities don’t; in order to define his precise occupation in the village.”

45. This fair large and liberal interpretation of the word “occupation” as used in s. 208 (d) of the Organic Law was applied by this Court 10 years later in Dr Bob Tawa Danaya v. Ati Wobiro (2013) SC1292, in its finding that:

“...the learned primary judge actually found that the statement “Second Secretary to the office of the former Governor Western Province” would have been a sufficient description – if it were a correct description – of the witness’s occupation as it was a statement of what he did for a living. So his Honour did not fall into error in his assessment of the sufficiency of the description.”

46. The decisions in the above two cases came out of objections taken against the respective petitions. That is the very kind of technical argument or issues s. 217 precludes from being raised. It should follow therefore that, an objection to competency of an election petition may be taken only if the petition fails to do what is required under s. 208. That is to say, an objection to competency of an election petition may be open if, the petition fails to state any fact that sufficiently discloses a known ground for voiding an election outcome or, fails completely to meet any of the requirements under s. 208 (b) to (e). Such a petition should be contrasted with a petition in which the petitioner has made a serious effort that is evident in his or her petition toward meeting these requirements. In the latter case, an objection to its competency would have no place. If there a defects or errors or omissions with what is stated, a substantive justice answer to such a situation would be an amendment and not a dismissal of the petition.

47. The decision in Aihi v Avei and Danaya v.Wobiro settled the law on how a petitioner could correctly plead an attesting witness’ occupation. Whatever description is given by a petitioner, the Court should adopt a more fair large liberal or flexible and purposive approach to determine sufficiency, if there is an issue. Consequently, and for clarity, it should follow therefore that, all judgments, be they from the Supreme Court or the National Court that are contrary to these decisions and principles they stand for, are thus in my view inappropriate and inapplicable.

48. Other than the above clarifications, I expressed the view with respect that, both the correctness and appropriateness of the decision in Biri v. Ninkama, was in question on the basis of the flaws I pointed out. At the same time, I noted that, subsequent decisions of this Court have not examined the correctness of the decision in Biri v. Ninkama in any meaningful way. Instead, they have readily adopted and applied that decision. Accordingly, I noted then that:

“This now calls for a revisit of the correctness and or soundness of those authorities as has been recently highlighted by the recent decisions of the Supreme Court in Sauk v. Polye... and Saonu v. Dade....”

49. In Kala Rawali v.Paias Wingti and Tom Olga v. Paias Wingti (2009) SC1033, a single member Supreme Court, per Injia CJ noted the need for a revisit of the decision in Biri v. Ninkama in this way:

“In Sauk v Polye (2004) SC 769, the Supreme Court advocated a more liberal and flexible reading and application of s 217. This was contrasted with the more literal and strict reading and application of provisions of the Organic Law including s 217 by the Courts in previous cases including the celebrated case of Biri v Ninkama [1982] PNGLR 342. The facts of the present case provides an opportune time to revisit these cases and set the proper principles for the interpretation and application of provisions of the Organic Law dealing the hearing and determination of election petitions and any post judgment hearing conducted by the Court following completion or otherwise of a Court – ordered recount of votes.”

50. Four years later in 2013, this Court in its decision in Philip Kikala v. Electoral Commission and Nixon Koeka Mangape (2013) SC1295, per Salika DCJ (as he then was), Cannings and Kariko JJ, had a real revisit of the decision in Biri v. Ninkama. That was particularly in relation to the interpretation given to s. 217 of the Organic Law. There, the Court observed correctly in my view, at paragraph 19:

“For many years the conventional view has been that Section 217 only applies once it has been determined that the National Court has jurisdiction, so that when the Court is determining objections to competency Section 217 should not be considered. This was the approach set out by the Supreme Court (Kidu CJ, Kapi DCJ, Andrew J) in SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, where the Court in a joint judgment held:

‘It is clear that [s 217] of the Organic Law is relevant only when the National Court determines the merits and when dealing with evidence before it as relevant to the merits. It is a procedural section only.’

51. The Court in Kikala v. Electoral Commission was of the view that, the time had come after the passage of 31 years since the decision in Biri v. Ninkama “to take a fresh approach to Section 217.” It then went on to say:

“We do not see any good reason to say that it is fully applicable once the Court is determining the merits of a petition, but to ignore it when determining an objection to competency. Section 217 implores the National Court to take a special approach to the hearing of a petition, and this special approach – to be guided by the substantial merits and good conscience of each case etc – should begin the moment any aspect of the petition is before the Court for its determination, including when an objection to competency is made.”

52. As the Court noted, that fresh approach was set in motion by the decision in Saonu v.Dadae when it observed:

“With respect, Courts cannot be dispensing justice when election petitions are thrown out even before they start.”

53. That was strengthened by the decision in Sauk v. Polye, which “urged the National Court not to be hamstrung by legal forms and technicalities when determining objections to competency.” The Court in Kikala v. Electoral Commission quoted from that decision what I have quoted and reproduced in the earlier part of this opinion. The Court then noted:

“... in more recent times the National Court has in some cases taken Section 217 into account when determining objections to competency, egSteven PirikaKamma v. John Itanu (2007) N3246 (Kandakasi J) and Peter Charles Yama v. Anton Yagama (2012) N4928 (Cannings J).”

54. In Michael Sapau v.Parkop Posangat (2013) SC1256, per Injia CJ (as he then was) this Court made it clear that s. 217 of the Organic Law is applicable during the various stages even during the process of case management through directions hearings before the ultimate of trial in an election petition. There, his Honour said:

“In election petition disputes, Section 217 and s212 (1) of the Organic Law give wide discretion to the judge to actively manage an election petition until its disposition. Such discretion and the active involvement of the judge in the management of an election dispute is essential to achieve a fair and prompt disposition of the real and important factual and legal issues in a case; and in the process, ensuring that the Court process is not abused or used as another forum for disgruntled candidates to air their political grievances or exact political vengeance on their political opponents.”

55. Prior to Kikala v. Electoral Commission & Mangape, this Court in its decisions in Saonu v. Dadae and Sauk v. Polye, as already noted and emphasised the need for flexibility when the Courts come to deal with an election petition, rather than adopting a strict approach given amongst others, the provisions of s. 217 of the Organic Law. In William Powi v. Bernard Peter Kaku (2019) SC1856, in rejecting an argument of the applicant, I pointed out with the agreement of my brothers Mogish and Dingake JJ, that: “the law has now changed as represented by the decision in Philip Kikala v. Electoral Commission ...” I then quoted the relevant part of the judgment in Kikala v. Electoral Commission, and went on to observe:

“80. As the Court itself noted, it was not alone in taking that position. The Courts earlier decisions in Ginson Goheyu Saonu v. Bob Dadae (2004) SC763 and Jimson Sauk v. Don Pomb Polye (2004) SC769, had earlier taken that position. Since then, a number of National Court decisions, including my own decision followed that line of authority. My decision on point is the decision in the case of Steven Pirika Kamma v. John Itanu (2007) N3246.

81. These decisions represent the current position of the law. Hence, the Applicant’s arguments against the application of s. 217 is without merit and is not likely to succeed.”

56. The decision in Paru Aihi v. Moi Avei and Danaya v. Ati Wobiro both accepted and applied the fair large liberal and purposive interpretation of the relevant principles in the Organic Law in the context of election petitions. What has thus developed into is not a new or novel idea. Section 109 (4) of the Constitution clearly dictates in no uncertain terms that:

“(4) Each law made by the Parliament shall receive such fair, large and liberal construction and interpretation as will best ensure the attainment of the object of the law according to its true intent, meaning and spirit, and there is no presumption against extra-territoriality.

57. Proceeding on that basis, it is settled law that, the fair large liberal and purposive approach should be employed for the interpretation and application of a Constitutional law and other statutory provisions as opposed to the narrow and restrictive approach. The Supreme Court has been repeatedly making this point clear and have also applied the principle in many cases. One of the earliest decisions of this Court representing these authorities is Inakambi Singorom v. John Kalaut [1985] PNGLR 238. There, the first national Chief Justice, Sir Buri Kidu, speaking in the context of considering the interpretation of a Maximum Penalty legislation said of the principles governing statutory interpretation:

“Rules or maxims of interpretation of statutes are only guides and must not be thought of as substantive law. They are not inflexible rules to be applied without question. In this jurisdiction these rules are subject to two very important constitutional provisions: (a) fair and liberal interpretation (Sch 1.5 (2)) and (b) the paramountcy of justice (s 158 (2)). Schedule 1.5 (2), I know, relates to the interpretation of constitutional laws, but if constitutional laws, which are higher laws than Acts of Parliament, must be given their fair and liberal meaning, it is my view that that means that ordinary laws must be given their ‘fair and liberal meaning’. Section 158 (2) says that in interpreting laws the courts must ‘give paramount consideration to the dispensation of justice’.

Whatever the rules or maxims of statutory interpretation say, one thing must not be lost sight of and that is that a clear parliamentary intention in legislation cannot be ignored or overruled by the courts. The courts cannot and must not frustrate clear parliamentary intention in any legislation so long as such legislation is constitutionally valid. For Parliament is empowered by the Constitution, s 100, to exercise the legislative power of the people and not the courts. In fact Parliament's legislative power, subject to the Constitution, is unfettered (the Constitution, s 109 (1) ), and laws made by Parliament ‘shall receive such fair, large and liberal construction and interpretation as will best ensure that attainment of the object of the law according to its true intent, meaning and spirit’ (s 109 (4) ). I have said the above to emphasis that a court cannot go beyond its powers by using maxims of interpretation or rules of interpretation to over-ride clear and explicit parliamentary intent in legislation. This is not saying that I support ‘the strict literal and grammatical construction of the words, heedless of the consequences’ approach to statutory interpretation: see PLAR No 1 of 1980 [1980] PNGLR 326.

The ‘purposive’ rule of interpretation urged by Wilson J and Andrew J in PLAR No 1 of 1980 must not be used by the courts to nullify laws which are clearly constitutional and which clearly and unambiguously state the intentions of the legislature. What I am saying can be stated simply this way: Where Parliament says in an Act that ‘dogs’ are to be registered if they are pets, a court cannot say that ‘dogs’ means ‘pigs’ simply because pigs are sometimes raised as pets.”

58. Later or recent decisions continue to recognise these principles and adopt and apply them: See for example, in Reference by the East Sepik Provincial Executive (2011) SC1154, per Kirriwom J; Reference pursuant to Constitution, Section 18(2) Re Jurisdiction of the Leadership Tribunal (2019) SC1852, per Kandakasi DCJ, Batari, Cannings, David and Hartshorn JJ and Special Reference pursuant to Constitution s19(1) Special Reference by the Ombudsman Commission of PNG (2019) SC1879, per Salika CJ, Kandakasi DCJ, Mogish & Manuhu JJ.

59. As noted in the decision in Inakambi Singorom v. John Kalaut, one of the earlier judicial pronouncements on the interpretation of the Constitution and other Acts of Parliament is the celebrated decision of Wilson and Andrew JJ., in PLAR No. 1 of 1980 [1980] PNGLR 326. There, their Honours stated:

“... there is no place in a developing country where the courts, as well as the Law Reform Commission, are given special responsibilities in the process of development, for the narrow interpretation of statutes without adequate regard to the social purpose of particular legislation. Development is difficult to achieve if courts adopt too conservative an approach to the interpretation of statutes. There has been a tendency in our National Judicial System, less evident in some recent decisions of the courts but still perceptible, to over-emphasize the literal meaning of a provision at the expense of the meaning to be derived from other possible contexts; the latter including the application of the ‘mischief’ rule, the recognition of the general legislative purpose, as well as the obligations laid down under the Constitution such as, for example, the obligation upon the courts in interpreting the law to give ‘paramount consideration to the dispensation of justice’...”

60. In my decision in the matter of Special Reference by the Attorney-General pursuant to Constitution, Section 19 (2016) SC1534 and elsewhere, I have taken this to mean:

“... the Courts should be taking a more liberal and purposive approach when it comes to interpreting and applying the provisions of the Constitution and other statutory provisions in our country in order to do justice. A large number of subsequent decisions of the Supreme and National Courts have consistently allowed themselves to be guided by these principles. As I noted in my decision in Motu Koita Assembly v. NCDC... an example of the Court adopting the liberal and purposive approach to statutory interpretation, is the Supreme Court decision in SCR No. 1 of 2000; Re Morobe Provincial Government for and on behalf of the Morobe Provincial Executive Council.... There the Court having regard to the provisions of schedule 1.5 (interpretation) of the Constitution said:

‘Going by this expressed dictation in the Constitution ..., it is now an accepted principle of both constitutional and other statutory interpretation, that the provisions of the Constitution and all Acts of Parliament must be given their fair and liberal meaning. This is so as to give effect to the intent of Parliament behind the provisions in question. There is a long line of case authority on that.’

61. There are however, two well-known exceptions to the above position of the law. The first of the two exceptions are in cases where the words used in the legislation are so plain and clear that no art of interpretation is required. The second exception is in the area of tax legislation, where the strict interpretation rule applies. The reason for this exception is simple. For the imposition of a tax or a charge against a subject, Parliament needs to express that intention in clear and unambiguous terms in the relevant statute. A failure to do so, would result in an interpretation that is favourable to taxpayers.

62. The Organic Law, is a Constitutional law pursuant to Constitution Sch.1(1). It follows therefore that, when it comes to the interpretation and application of any of its provisions, a fair large liberal and purposive meaning must be given to the words employed by the legislature, unless of course, there is an expressed prohibition or exclusion. The decision of this Court in Paru Aihi v. Peter Isoaimo (supra), is a case on point. The case concerned the interpretation and application of the provisions of s.215 of the Organic Law and s. 103 of the Criminal Code for a petition based on bribery involving the giving away of large sums of money during an election campaign event. With my learned brothers agreeing, I stated at paragraph 96:

“When it comes to statutory interpretation in our jurisdiction, from the provisions of the Constitution to lesser legislation, the well accepted rule is to use the purposive approached in order to give effect to the intention behind the provisions. Hence, the question that necessarily arises is this. What was Parliament’s intention behind enacting the provisions of s. 103 of the Criminal Code and s. 215 of the Organic Law on Elections? I consider what, Sheehan J., (as he then was) said in Raymond Agonia v. Albert Karo & Electoral Commission, ... as to the purpose of s. 103 of the Criminal Code is on point. There His Honour said:

‘Without analyzing this section exhaustively, it is clearly a section that is designed to prohibit improper inducements to persons, to electors, or candidates in an election. Whether those inducements are made to an elector – defined as any person entitled to vote at any election – or other persons, the corrupt practices aimed at are those inducements offered or sought, with the intention of interfering with the lawful process of an election.’

63. I then reviewed almost all the cases on point including, the decision of this Court in Peter Wararu Waranaka v. Gabriel Dusava (2009) SC980, per Kandakasi J (as I then was), Gabi and Lay JJ. Then applying the fair large liberal and purposive approach, I stated at paragraphs 102 and 103:

“Giving gifts and throwing up of big or small parties and feasts are good. However, what makes them wrong is when they are employed to influence an election outcome in the case of an election setting. If people want to give gifts or throw up parties there should be no problem if they take place well before an election year and certainly not immediately before the issuance of writs, commencement and during campaigning and election periods. We should be encouraging better planning by those who wish to seek to lead our nation and allow for a clean election period where the integrity of those standing for elections and their policies or plans for their respective electorates and how they propose to achieve those plans should be left to be the focus during the election period. Allowing this so-called culture or custom of festivities, parties and giving of gifts will continue to allow for a muddying up of the election period and divert attention away from the important issues of a candidate’s, integrity, policies or plans for his electorate and how he or she proposes to achieve them. This is the only way to prevent what has fast become a cash based election where the more money a person is prepared to throw away in cash hand outs, parties, festivities and other benefits, the more likely they are to get elected.

I appreciate that, our cultures and customs are preserved under our Constitution by virtue of Schedule 2.1 (1). However, I note this is not an open license. It is subject to Schedule 2.1 (2) which qualifies that a custom that is inconsistent with the Constitution or a written law and the general principles of humanity is not to be adopted. In the case of the custom of giving of gifts, parties and festivities and other benefits with eyes fixed on being elected at an election during election periods are clearly outlawed by s. 103 of the Criminal Code and s. 215 of the Organic Law on Elections, for the serious impact this has against the development and advancement of our nation. This is thus not a good custom which is rightly being proscribed by the provisions in question.”

64. I note with respect that, the Court in Biri v. Ninkama, did not give any consideration to the principles that should guide the interpretation and application of the provisions of the Organic Law, which is a Constitutional law. That resulted in the Court employing a strict interpretation approach and in so doing, introduced two restrictions that have no expressed foundation in the Organic Law, which go against the whole purpose and intention of providing for election petitions as discussed above. Firstly, the decision bars all forms of amendments after the expiry of the 40 days limit under s. 208 (e) of the Organic Law. Secondly, the decision deferred the application of s. 217 also of the Organic Law until at the trial of a petition. This strict approach in my view, has also prevented the Court from considering and appreciating:

(1) the importance of an election petition which may represent not only an individual losing candidate but representative of a significant part of an electorate;

(2) election petitions assist in ensuring and enabling respect for and maintaining the integrity of the electoral system with the election process and election outcomes;

(3) lawyers are specifically excluded from appearing in election petition cases by s. 222 of the Organic Law except by consent of the parties or with leave of the Court;

(4) given (3) above, it was intended that an ordinary PNG citizen not standing in the same position as a citizen in Australia or England in terms of his or her educational and sophistication levels would bring an election petition to the National Court;

(5) given (3) to (4) above, Parliament would therefore have not intended or foreseen flawless petitions but could have anticipated defects, errors and omissions attending election petitions;

(6) appreciating (3) to (5) above, Parliament deliberately decided to allow for flexibility with less rigidity by deciding to and including the provisions of s. 217 of the Organic Law to ensure that was the case; and

(7) in particular, the technical rules going into pleadings and evidence that attends other proceedings are specifically excluded by s. 217 of the Organic Law to allow for more flexibility in the Courts dealing with election petitions.

65. As already noted, the decisions in Sauk v. Polye and Saonu v. Dade took a strong position against the strict approach and the ready dismissal of election petitions at the objection to competency stage. At the same time, those decisions took the view that Biri v. Ninkama was still good law. Subsequent decisions of this Court such as the one in Talita v. Ipatas, which was decided in 2016 continued to accept Biri v. Ninkama as good law. However, I note with respect again that, this line of authorities has not meaningful reviewed the basis for the decision in Biri v. Ninkama. That has resulted in many conflicting or differing decisions of both the Supreme and the National Courts.

66. The decision of this Court in Kikala v. Electoral Commission, revisited the soundness of the decision in Biri v. Ninkama. That decision in particular held that, after 31 years of Biri v. Ninkama being the law on election petitions, we now need to take a fresh look or approach to the law as represented by Biri v. Ninkama and it did. In so doing, that decision corrected what I pointed out in Kamma v. Itanu as one of the flaws in the decision in Biri v. Ninkama. Carefully considering this and all of the foregoing discussions including, the observations I made in Kamma v. Itanu case, there is good reason now to depart from Biri v. Ninkama in all that it stands for except only where it states that the requirement of s. 208 and 209 are mandatory because of s. 210 of the Organic Law and those requirements must therefore be strictly met.

67. For clarity the requirement to strictly meet the requirements of s. 208 of the Organic Law is in:

(a) setting out sufficient facts disclosing a known ground that can invalidate an election or return; 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).

68. As long as a petitioner addresses and or meets all of these requirements, his or her petition should qualify to progress to trial. In other words, if a petition on its face reveals a meeting of all of these requirements that should be sufficient for the purposes of s. 210 of the Organic Law. It should follow therefore that, objections to competency of petitions can only be raised against a petition which on its face fails to meet any of the requirements under s. 208 (a) to (d) and is something that cannot be cured by appropriate amendments either before or after the expiry of the time period stipulated under s. 208 (e) of the Organic Law. An incurable defect, error or omission in an election petition could be a complete failure to:

(a) disclose by a statement of the facts (regardless of however poorly or well drafted the petition might) at least a known ground for invalidating an election or return; or

(b) state the occupation of the attesting witnesses as was the case in Biri v. Ninkama; or

(e) file the petition within 40 days after declaration of the relevant election results.

69. Also, a petition that fails to meet the condition precedent of the deposit requirement under s.209 of the Organic Law could correctly attract an objection to the competency of a petition because of s.210 of the Organic Law. That would be for not meeting a prerequisite or condition precedent to filing an election petition.

70. As the foregoing discussions obviously favour a fresh look, revisit or a departure from the earlier case precedent of Biri v. Ninkama, and the long line of cases that follow it, it is necessary to consider the principles which governs departures from past precedents. I note, the principles governing a revisit and departure from earlier case precedent is well settled in our jurisdiction. I discussed those in detail in my decision with the agreement of my brother Yagi J in, Paru Aihi v. Peter Isoaimo from paragraph 23 to 26. I wish not to repeat that discussion here except to restate what I made out of that at paragraph 27:

(b) but in the interest of providing certainty and consistency in the law for the society’s guidance and for the avoidance of chaos and disorder, the Court cannot readily and easily depart for its earlier decision;

(c) departures within a short space of time is undesirable and should not be encouraged; and

(i) the earlier decision misinterpreted, misconceived, mistook or misunderstood the law which requires correction;

(ii) the law pronounced or stated in the earlier decision is no longer appropriate and applicable to the current prevailing circumstances and needs of the country; and

(iii) as a matter of practice, the Chief Justice must be part of a Court comprising of 5 Judges which may decide to depart from an earlier decision.”

71. These discussions and summation of the principles have been adopted and applied in a number of subsequent decisions of this Court: See, Lovika v. Malpo (2019) SC1895, per Kandakasi DCJ, Bona & Shepherd JJ; PNG Bible Church Inc v. Carol Mandi (2018) SC1724, per Kandakasi (as I then was), Toliken & Bona JJ and see also my dissenting view in Michael Kuman v. Digicel (PNG) Ltd (2017) SC 1638. Applying these principles here, I note as follows:

(a) this five-member Supreme Court is not bound by its own earlier decisions starting from the three-member Supreme Court decision in Biri v. Ninkama;

(b) in the interest of providing certainty and consistency in the law for the society’s guidance and for the avoidance of chaos and disorder, the Court has not readily and easily departed from its earlier decisions;

(c) departure from the Biri v. Ninkama and the line of decisions following it have been called for and finally after more than 31 years later, this Court in Kikala v. Electoral Commission departed from the decision in the Biri v. Ninkama and the various decisions that follow it; and

(d) additionally, exceptional circumstances now exist which warrant a departure from the decision in Biri v. Ninkama and its line of authorities because:

(i) that decision and those following it have misinterpreted, misconceived, mistook and or misunderstood the law as pointed out above which require correction in the terms discussed;

(ii) the law pronounced or stated in the earlier decisions are no longer appropriate and applicable to the current prevailing circumstances and needs of the country for the reasons also given above; and

(iii) although the Chief Justice is not a part of this Court comprising of 5 Judges, His Honour then as Deputy Chief Justice, was the president of the Court in Kikala v. Electoral Commission which consciously commenced the departure from Biri v. Ninkama and its line of case.

72. Proceeding on the basis of all the foregoing discussions and the way in which ss. 208, 210 and 217 and 222 of the Organic Law should be interpreted and applied, I now return specifically to the two issues for resolution in this case. These issues once again are:

(1) Whether the word “self-employed” comes within the meaning of the word “occupation” as used in section 208(d) Organic Law?

(2) Whether the pleadings in the petition in respect of bribery allegations sufficiently state the facts for the purposes of section 208 (a) of the Organic Law?

73. In addition to His Honour Kirriwom J’s reasoning and decision on this issue, I note first that, the decision in Paru Aihi v. Moi Avei and Danaya v. Wobiro are precise, clear and consistent. They have both adopted and applied the fair large liberal and purposive approach. Using that approach, the respective pleadings of “villager” and “Second Secretary to the office of the former Governor Western Province” were considered sufficient meeting of the requirements of s. 208 (d) of the Organic Law. Contrary to these clear authorities, the learned trial judge relied on the dissenting view in the first case, and found that the description of the occupation of the attesting witnesses as “self-employed” was insufficient. The learned trial Judge erred in not following the clear authorities on point and the need to approach election petitions with flexibility employing the fair large liberal and purposive approach and thereby erroneously followed the minority view in Aihi v. Avei.

74. Applying the correct flexible and liberal approach, I am of the view that the description of the attesting witnesses’ occupation as “self-employed” is sufficient for the purposes of s. 208 (d) of the Organic Law. The term “self-employed” is synonymous with, the words “freelance”, ‘independent”, “freelancing”, “entrepreneurial”, and “self-starting”. A person who is “self-employed” does not work for a specific employer who pays him a consistent salary or wage. Such a person earns income by contracting or working with a trade or business directly or even apply their skills, knowledge and experience to produce a product that could be sold in the open market. As could be apparent from this, self-employed persons could be seen in the same light as this Court saw the term “villager” that was used to describe the occupation of an attesting witness by the majority in the Paru Aihi v. Moi Avei. A self-employed person could do any number of jobs or work in a day or a week or a month or a year to earn his or her income or living. Obviously, the term “self-employed” is a catch all word to cover the varied kinds of activity or work a person who is a freelancer or independent worker, or entrepreneur or a self-starter could be doing to earn is income or living.

75. For these reasons, I find with respect that, the learned trial Judge, fell into an identifiable error. In arriving at that view, I find myself in retrospect, having fallen into the same error as the learned trial Judge did here, in my decision in Waranaka v. Maru. In that case, I held that the term “self-employed” does not amount to an occupation, it was ambiguous and decided to follow the dissenting view for reasons given for it. That came about as a result of equivocation around whether the strict approach or the flexible and liberal approach should be employed when dealing with election petitions. This was the case even after Aihi v. Avei and Sauk v. Polye and Saonu v. Dadae which decisions did not as I discussed above, carefully review Biri v. Ninkama and the basis for that decision. In Kikala v. Electoral Commission, the Supreme Court made a clear decision to depart from Biri v. Ninkama on the question of when s. 217 of the Organic Law comes into operation. It did not go further to elaborate and comment on the validity of the other principles Biri v. Ninkama is often taken to stand for, such as no amendments at all after the expiry of the 40 days stipulated under s. 208 (e) of the Organic Law or that election petitions should be approached strictly. That in my view, left the National Courts and even the Supreme Court without much clarity which has in turn, led to many conflicting views. The parties in this matter appreciating that position, specifically requested a five-member Supreme Court Bench to settle the law, hence the empaneling of this Court.

76. After, this decision it should be clear that Biri v. Ninkama is no longer good law except only as indicated for the reasons given above. It should also be clear that, it is now well established that the terms, “villager”, “self-employed” and the phrase “Second Secretary to the office of the former Governor Western Province” are sufficient description of attesting witnesses’ occupation. It should also be clear that the Courts should take a flexible and fair and liberal approach when considering any other description employed to describe an attesting witness’ occupation or indeed all attempts at meeting all the requirements of s. 208 (a) to (e) of the Organic Law. The Courts “should be guided by the substantial merits and good conscience of each case” free from “legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.” Applying this principle to the present case, I find the petitioner did meet the relevant prerequisite to state the attesting witnesses’ occupation. Consequently, the review against the learned trial Judge’s decision must be granted.

77. Turning now to the second issue, I reaffirm my agreement with my brother Kirriwom J as to his statement of the relevant issue, a summary of the relevant pleadings of bribery and the only one ground of undue influence the learned trial judge did not address. I have also read Makail J’s decision covering this issue. I agree with both their Honours that the facts alleging bribery and undue influence were sufficiently pleaded or stated and they did meet the requirement under s. 208 (a) of the Organic Law, by reason of which, the learned trial Judge erred in dismissing each of the relevant grounds and ultimately the petition.

78. Further to what my learned brothers Kirriwom and Makail JJ have stated in their respective learned opinions, I note in relation to the allegations based on bribery in this case, essentially state that the First Respondent went out to various locations within the relevant electorate during the campaign period and gave out large sums of money to certain groups of voters who were gathered at the various locations. As he gave the money, he said the money was being given to them for the purposes of ensuring that the recipients could in return, vote for him.

79. This brings immediately to my mind the decision in Aihi v.Isoaimo, which I referred to and discussed earlier above. There, as was the case here, the applicant turned up at an election campaign rally and handed out large sums of money in the form of cheques to various groups of people. The trial Judge found that was done with intend to bribe the voters and found a case in bribery was made out against the applicant which formed the basis amongst others for an upholding of the respondents petition. On review, this court affirmed the trial Court’s decision, reasoning as it did. In view of that decision, and applying the fair large liberal and purposive approach as discussed above, when dealing with election petitions, and allowing myself to be “guided by the substantial merits and good conscience of each case” and ensuring not to be unduly restricted by “legal forms or technicalities”, I find the petitioner here has pleaded sufficiently the facts disclosing the four alleged instances of bribery which is a ground known and capable of upsetting an election or return. I so find because each of the allegations state the essential elements of:

(f) as he gave the money, he expressly said to those receiving them, that the money was given to them for them to vote for him.

80. These in essence constitutes the essential elements of the illegal act or offence of bribery. A number of cases, such as the decisions in Aihi v. Isoaimo, have clearly pointed out the essential elements that must be pleaded. There, with the agreement of my brothers, Hartshorn and Yagi JJ, I pointed out the essential elements in the following terms:

“... it is established law in our jurisdiction that, a petition based on bribery must plead the essential elements of the offence of bribery alleged. These include the following:

(e) The bribe was offered with the intention of causing or inducing the elector to vote for the person returned as duly elected member of the relevant electorate.”

81. To this, I added in my decision in Waranaka v. Maru, the element of “the wining candidate must be a ‘candidate’ at the time when an act of bribery is alleged to have been committed.” I reasoned that, this was critical “because of the legal requirement that the offence must be committed by a ‘candidate’ in the relevant election.

83. The facts pleaded in this case, sufficiently discloses each of these essential elements of the offence of bribery. Despite that, the learned trial Judge fell into a clearly identifiable error by undertaking a strict scrutiny of the pleadings and ended up with a decision that effectively required the petitioner to plead the evidence which is not required or do more than that which is required of a petitioner.

84. KIRRIWOM J: This is a Review of the National Court decision dismissing the Applicant’s petition at a preliminary hearing on an objection to competency of the petition on the application of the First Respondent and Second Respondent.

85. The Applicant was a candidate in the National Elections in 2017 contesting the Kainantu Open Electorate Seat in the Eastern Highlands Province in which he lost to the First Respondent in the field of 57 candidates by a margin of 5,306 votes. The Applicant polled 7,615 votes to the First Respondent who polled 12,921 votes.

86. He filed a petition on 4 September 2017 alleging instances of irregularities in the conduct of the elections by the electoral officers and numerous instances of bribery and undue influence by the First Respondent during the elections.

87. Objections to the competency of the petition was filed by the First and Second Respondents on 21 November and 22 December 2017 respectively, essentially on two grounds: firstly, on the basis of non-compliance with section 208 (d) of the Organic Law that stipulates that the petition “be attested by two witnesses whose occupations and addresses are stated,” and secondly, for non-compliance with section 208(a) for failing to plead sufficient or adequate facts.

88. In his petition the occupation of one of the attesting witnesses was stated as “self-employed” while the other was stated as an office clerk, both of Tibunofi village, Kainantu District, Eastern Highlands Province. The First and Second Respondents took issue with the use of the word ‘self-employed’ as not fulfilling or complying with the strict requirement of section 208(d) because, it was argued, the word “self-employed” was not an occupation. In an extended sense, it meant being self-employed was not pursuing an occupation or one’s career.

89. The objection to competency was heard by Numapo AJ on 31^st July 2019 and on 10 December 2019 he delivered his judgment upholding the objection to the competency application on the two grounds under section 208(a) and (d), and dismissed the entire petition. Against this ruling the Applicant has come to the Full Court of the Supreme Court following grant of leave to Review by Single Judge Supreme Court (per Cannings J) on 28 February 2020, seeking review of that decision.

90. We heard Mr Hagahuno who appeared in person to prosecute his own review. He urged the court to adopt and apply a liberal approach to interpreting the word “occupation” to include the description “self-employed” in line with earlier decisions of this Court including Danaya v.Wobiro (2013) SC 1292 where “Second Secretary to the Office of the former Governor of Western Province” as witness’s description of his occupation was accepted as sufficient statement of his occupation.

91. Both Mr Mawa for the First Respondent and Mr Ninkama for the Electoral Commission submit that the word “self-employed” in its literal meaning and sense is not an occupation and therefore strictly speaking, it is not fulfilling the requirement of section 208(d). They rely on the dissenting opinion of Sakora J in Paru Aihi v.Moi Avei (2003) SC720 where a five-member Court was asked to determine whether the word “villager” could satisfy the requirement of section 208(d) as one’s occupation. The Court decided 4-1 in favour of the liberal interpretation by analogizing a villager to a ‘self-employed’ person. Justice Sakora decided otherwise and since then a number of National Court decisions have favoured and followed that minority view. I refer to some of those decisions in the judgment.

92. With regard to non-compliance with section 208(a), Mr Hagahuno contended that he had sufficiently pleaded the facts and the circumstances constituting all the allegations of bribery and undue influence in altogether seven instances where he alleged the voters were bribed or unduly influenced by the First Respondent during the election. He was relying on sections 102 and 103 of the Criminal Code and section 215(3)(a) of the Organic Law and argued that the Court must not be too legalistic and stringent in the interpretation and construction of a Constitutional law to apply in a given situation when it comes to election petitions. Such an approach would not be in the spirit of the law on the elections as envisaged under section 222 of the Organic Law which was specifically included to ensure that a candidate’s right under section 206 to challenge the result of an election must be less complicated for a layman and be crafted in layman’s language to be understood by layman. This was a deliberate inclusion to avoid legal technicalities, hence, the need for leave first sought and granted before any lawyer’s appearance in an election petition. Mr Hagahuno submits that the Court must be guided by substantial merits and good conscience as stipulated in section 217 of the Organic Law.
93. Both Mr Mawa and Mr Ninkama argue that the petition is incompetent in not clearly and concisely pleading the facts necessary to articulate each ground of bribery in the context of section 103 of the Criminal Code. They described the pleading as telling a story as opposed to pleading the essential elements of the offence of bribery allegedly committed thereby inducing the voters to vote for the First Respondent. They argue that, the pleadings are convoluted and not clearly setting out the facts relied on to invalidate the result of the election but pleading evidence instead.

95. What is meant by “self-employed” in the ordinary usage of that word in everyday language? It simply means that a person makes his living by doing his own thing in whatever trade or profession or business or service he renders for fee or for which he gets paid. Oxford Advanced Learner’s Dictionary defines “self-employed” as an adjective, meaning, working for yourself and not employed by a company, for example, a self-employed musician, etc. And the word can also be used as a noun such as, retirement plans for the self-employed = people who are self-employed.

96. Section 208(d) of the Organic Law provides: ‘A petition shall...be attested by two witnesses whose occupations and addresses are stated...’ Occupation refers to a job or a profession or the way in which a person spends his time when not working according to Oxford Advanced Learner’s Dictionary. In other words, it is the way a person spends his time. So, it could mean that if a person spends his time doing odd jobs for a living and gets paid for doing what he does, he is self-employed and therefore what he does is his occupation.

97. It is contended that a more liberal interpretation be given to the word self-employed to satisfy the requirement of section 208(d) as meaning occupation. This is the argument advanced by Mr Hagahuno while the Respondents argue that the Court must apply the strict rule of interpretation without expanding the definition of the word ‘occupation’ beyond the ordinary meaning in the dictionary as ordinarily understood of what the word occupation means. Therefore, the word occupation must be confined to a person’s job or profession, and nothing else.

98. In my view, the starting point for any discussion on this issue is the five-member Court in Aihi v. Avei (supra) where the majority decision preferred a more liberal approach of an attesting witness’s description of himself in terms of his occupation. This view was subsequently affirmed by a three-member Court in Danaya v. Wobiro (supra) when the attesting witness to the petitioner’s petition was a Second Secretary to the former Governor of Western Province which the Supreme Court found to be sufficient and upheld the review.

99. Since then there have been numerous decisions for and against the liberal approach and I am indeed honoured to be sitting in this Court with several of my brothers who have considered and decided more election petition cases than myself and even on this very same issue, favouring one view or another. I must confess I have not had the benefit of presiding over one election petition on this issue and I will be indebted to them for their opinions. I am aware, while reviewing case authorities, that different views were expressed on section 208(d), in particular with regard to the word “occupation” and I am positive that we will settle this point in accordance with the spirit of the Constitution and the powers given to this highest Court by the Constitution.

100. Section 208(d) of the Organic Law and the word ‘occupation’ has been subject of both the Supreme Court and National Court deliberations. In this case, after analysing all the case authorities, the trial judge deliberately chose to align himself with the dissenting opinion of Sakora J in Paru Aihi v. Sir Moi Avei (No 2) (2003) SC720 (which is a five-member Court where by majority of 4-1 the Court accorded liberal interpretation to the word “villager” as satisfying the requirement of section 208(d) to bring it within the meaning of one’s “occupation”) and several National Court cases (Apaso Oibotee v. Benny Allen (2013) N5155; Waranaka v. Maru(2018) N7346) that supported the restricted approach to defining the word ‘occupation’ to mean simply a person’s job or profession.

“The term “self-employed” is not an “occupation” per se. If one is self-employed, he must state the profession of which he is self-employed in. For example, he is working for himself as a plumber, or a carpenter, or a lawyer, or a doctor or a consultant and earning a salary for doing so.”

102. With respect, I disagree with the primary judge in the above passage of his judgment because in my reading of it, towards the end, he is contradicting himself. If he allows a ‘consultant’ to pass as one’s occupation, then he must allow “self-employed” to also pass as meeting the requirement of section 208(d) because a consultant falls in the same vein as a self-employed if one is to accept the dictionary meaning of self-employed adverted to earlier. While a self-employed can wear many hats (lawyer, doctor, barber, singer) so can a consultant (musician, educationist, a specialist in various fields, trade or profession) who prefers to go by the generic description of a consultant. Both self-employed and consultant are not occupation per se, they are general description of what they do for a living, and that is what a person’s occupation is all about.

103. His Honour’s restrictive interpretation would seem oblivious of the specific dictate of Schedule 1.5 of the Constitution which clearly provides that ‘all provisions of, and all words, expressions and propositions in, a Constitutional Law shall be given their fair and liberal meaning.’ While the choice of the majority in a universal suffrage must be protected, as was recognized by Chief Justice Frost in the first election petition case after Independence (see Neville Bourne v. Manasseh Voeto [1977] PNGLR 298) this must not cloud the constitutional mandate of an aggrieved candidate to seek redress of an electoral process by way of petition under section 206 of the Organic Law. This is why even at the competency stage of a petition going through the filtering process, the Court must also be mindful of section 217 Organic Law as constant reminder of the Court’s duty to be guided by the substantial merits and good conscience of the case when dealing with election petitions. Elections are very expensive business as is very clear in Papua New Guinea and challenging a result of an election in the Court of Disputed Returns is even dearer.

104. Thus, when one takes the term or phrase ‘self-employed’ by analogy to a villager, as falling within the meaning of ‘occupation’ as intimated or suggested in Aihi v. Avei (supra), the word “self-employed” fits into the definition of “occupation” as one’s way of earning a living through multi-skilled or multi-faceted activities that generate some form of income. One’s occupation is not just for the purpose of identification of a person by his trade or profession, but also by what he does for a living. He can be doing multiple jobs at the same time to earn his living, and prefer himself going publicly under the description of ‘self-employed’ or ‘consultant’ but he cannot describe himself as “multi-skilled’ or to be more precise “musician, doctor, gambler”.

105. This will be in line with Danaya v.Wobiro (supra) and the reasoning of the Court in that case makes a lot of sense when it stated that:

“whether a statement of occupation is factually correct is not a matter going to the competency of the petition. The statement is only open to question after the commencement of the trial of the petition and then only upon evidence as to its lack of veracity”.

“13. Even if the statement could be determined in the absence of evidence to be clearly incorrect, for example if a witness described his occupation as “Prime Minister of Papua New Guinea” and the court took judicial notice of the fact that that was a false statement, it would not necessarily follow that the requirements of Section 208(d) have not been complied with. Those requirements will in our view only be breached if the effect of the misstatement of occupation substantially defeats the purpose of Section 208(d), which is to enable the attesting witnesses to be easily located so that they can vouch for the genuineness of the petition (Agonia v Karo [1992] PNGLR 463, Karo v Kidu [1997] PNGLR 28, Tulapi v Lagea (2013) N5235). In determining whether the purpose of Section 208(d) was defeated it would be relevant to examine the whole of the description of the witness.”

107. In Dawa Lucas Dekena v. Nick Kuman (2018) 7472 while discussing this very same issue on the meaning of ‘self-employed’ in the context of section 208(d), Hartshorn J disagreed with Davani J in Apaso Oibotee (supra) and preferred a more liberal approach by endorsing the majority opinion in Aihi v. Avei (supra) saying that in some cases a politician and a leader were stated , amongst others, as examples of “one’s” occupation. Given this description, it is conceivable that “self-employed” could refer to a person’s occupation.

108. Other judges held similar views, some more than once, such as Batari J in Peter Waieng v. Tobias Kulang and Electoral Commission (2013) Unreported, Gavara-Nanu J in Bryan Kramer v. Nixon Philip Duban (2013) N5213, Ipang AJ in Sali Subam v. Aide Ganasi (2012) N5868 and Kariko J in Puaria v. Lera (2013) N5148.

109. Kandakasi J (as he then was) in Peter Wararu Waranaka v Richard Maru (2018) N7346also followed the minority view on this very description ‘self-employed’ in the context of section 208(d) and who now presides over this very issue will put this discussion to rest once and for all. Consistent with his views on section 208(a) as expressed eloquently in Steven Pirika Kamma v John Itanu (2007) N3246 will help also to resolve this issue.

110. The trial judge in this case has joined the minority group contrary to already overwhelming majority opinion supporting liberal approach consistent with Sch.1.5 of the Constitution and decision of a three-member Supreme Court.

111. In my opinion, the word ‘self-employed’ falls well within the meaning of the word ‘occupation’ as provided and intended in section 208(d) the Organic Law for purposes of attestation of a petition.

112. As the term ‘self-employed’ is a commonly used and preferred description of a person engaged gainfully for his or her living, it must be settled law in this jurisdiction for purposes of section 208(d) of the Organic Law that when used by someone as an attesting witness to an election petition filed by an aggrieved candidate, it fulfills the mandatory requirement of section 208(d) Organic Law. SC Review No 14 of 1992: Application by Herowa Agiwa [1993] PNGLR 136 (Woods J, Andrew J and Sakora J) sighed away from making any determinative pronouncement when the same issue was raised about the word ‘self-employed’ by simply disregarding the objection as trivial or immaterial as not affecting the merits of the petition. With the decision of the Full Court of this Court in Aihi v. Avei (supra) on the definition of ‘villager’ as describing the occupation of the attesting witness, this relative issue on the word ‘self-employed’ as an appropriate term for purposes of section 208(d) of the Organic Law by endorsing the decisions of the National Court in Sali Subam v. Aide Ganasi [2012] N5868, Bryan Kramer v. Nixon Duban [2013] N5231, Peter Waieng v. Tobias Kulang [2013] Unreported and Puaria v. Lera [2013] N5148 as correctly stating the law.

113. On the other hand, the following cases were wrongly decided, namely, Apaso Oibotee v. Benny Allen [2013] N5155; Tony Puana v. Joseph Lelang [2013] Unreported and William Hagahuno v. Johnson Tuke and Electoral Commission of PNG [2019] EP 52 of 2017 as they went against a binding Supreme Court majority decision in Aihi v.Avei (supra) by relying on a dissenting voice, contrary to constitutional dictate that the decision of or by the Supreme Court is binding on all courts except itself.

114. In a matter of Reference by the Public Prosecutor and in the Application of Opai Kunangel Amin [1991] PNGLR 1 (Kapi DCJ, Andrew J, Bredmeyer J, Kaputin J and Gajewicz J) the Full Court made this important pronouncement that is seldom adverted to which states:

“As a matter of practice, decisions of the Supreme Court (particularly a five-member court) should not be questioned before another court composed of different judges within a short period of time. Where, however the principles of law enunciated are clearly wrong, the Court is not bound by its own decisions.”

115. There is no suggestion, since Aihi v Avei (supra), that the principle developed in that case is clearly wrong by a three- or five-member court, so it therefore stands to reason why individual judges since that decision saw fit to follow the dissenting voice of Sakora J when the decision of the majority represented the law as it presently stands. And I affirm that to be the correct law.

116. In the circumstances I will uphold this ground of review and order the petition to be reinstated for hearing on the substantive grounds of the petition.

B. Were sufficient facts pleaded on bribery allegations against the First Respondent pursuant to section 208(a) Organic Law?

117. The issue here is whether the trial judge erred in law in dismissing the applicant’s petition by finding that his grounds for petition relying on bribery and undue influence were deficiently pleaded as not fulfilling the strict requirement of section 208(a) of the Organic Law? Mr Hagahuno argued that the trial judge erred because he wrongly applied or misapplied the law relating to the requirements for pleading of facts stipulated in section 208(a) when applying the law to the various incidences of bribery clearly pleaded in the petition setting out times, dates, places, persons and specific acts of bribery and undue influence by the First Respondent or his servants and agents, acting with his authority and knowledge, that clearly amounted to bribery under section 103 and undue influence under section 102 of the Criminal Code.

118. After reviewing case authorities on bribery, undue influence and illegal practices the trial judge examined each case of bribery alleged and the one count of undue influence and struck out each and every one of them as incompetently pleaded. It seems to me from reading his honour’s judgment from pages 31 to 46 where he addressed the bribery allegations, he was actually hearing the substantive petition itself as opposed to the competency of the petition.

119. I think we need to be very careful and constantly remind ourselves when dealing with preliminary hearings on the objections to competency of an appeal or review that different considerations apply at different stages. At the competency stage our focal attention is on whether the material facts have been set out and it is meritorious to go to hearing or trial and, in the substantive matter or trial, the first thing that comes to mind is whether there is evidence to support the grounds relied upon. There is so much confusion at this juncture of competency hearing that do total injustice to litigants, especially in election petitions, because of the strict requirements or foundations laid down quite early in the decision of the three member bench in Delba Biri v Bill Ninkama (supra) that we have read so much into the way the Court interpreted and applied section 208(a) of the Organic Law, and for a time, the same restrictive approach was also applied to interpretation and application of the other provisions of the Organic Law under Part XVII – Division 1 of the Organic Law that deal with election petitions.

120. The trial judge’s ruling on this objection to competency suffers from this anomaly. As an illustration in Bribery Case 1 at 54 Street (Kebe Street) Kainantu Town, the petition alleged that on 16 June 2017, the First Respondent gave a total of K1,200 to Karu Wesley and Baro Pomu who distributed that money to 40 other persons gathered. When he gave the money, he told them to vote for him and the applicant and lists the names of 23 of those persons present and who received the money. In ordinary parlance, those facts already suffice to go to trial on the allegation of bribery because the giving of the money was accompanied by words to them to vote for him and the applicant. Anything else besides these essential facts are matters for evidence. This is happening during an election campaign period, not in any ordinary time.

121. But the trial judge struck out the ground saying, firstly, the petition fails to state precisely the type of bribery allegedly committed under section 103 Criminal Code. This is to me nit-picking in terms of the different circumstances of bribery as defined in section 103. This is what section 103 provides:

(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,

122. There is no requirement to specifically plead a particular type of bribery alluded to by the trial judge. His Honour was reading too much into the decision of Nigel Agonia v. Albert Karo [1992] PNGLR 463 where Sheehan J was addressing this issue of setting out relevant facts in the context of section 103 where bribery is alleged to “give, confer or procure, or promise or offer to give or confer, or to procure or attempt to procure” because an offence of bribery can be constituted in different forms. But here, the facts are clear enough, there is giving of money to two voters who distributed the money to those gathered. What was the purpose for giving that money to those gathered? That is matter for evidence. That is for the First Respondent to tell the court or for the recipient as a witness, if called to testify, to tell the court. Is it right for the petitioner to include in his petition what he thinks was the purpose of the money was for? This is to me going way overboard with unnecessary overloading the requirement of section 208(a) of the Organic Law as to what constitutes “facts”.

123. The trial judge also had not fairly analysed the pleading under this Case 1 Bribery allegation because he struck out the ground because of the failure to identify and plead names of the 40 persons allegedly benefitted from the K1200. However, in fairness to the petitioner, names of 23 persons were provided in a Table in the petition under this ground. Assuming that the ground went to trial and out of the 23 names in the petition, it needs only one instance of bribery of just one only of the 23 persons bribed for the entire election to be nullified. Not all of them. And this point was succinctly stressed in my judgment in Luther Akisawa Wenge v. Kelly Naru (No 2) (2013) N5123:

“It has been said and repeated many time before that a petitioner who wants to challenge an election result on a ground of bribery or undue influence, he does not have to overload his petition with so many allegations or complaints but be smart and confine himself to one or two incidents he believes has good strong prospects of success and focus all his attention in building a good case on just those grounds and discard the rest. The attention that is required to establish one or two good grounds can be diverted to less promising grounds for the sake of giving equal attention to all the others that in the end, the entire petition suffers. And the answer is very simple. Unlike all other grounds, only one act of bribery or undue influence, if proved, is enough to overturn the result of an entire election. And because the standard of proof is high, the attention given to the case must equally be of high standard.”

124. So, did it really matter if only 23 of those alleged recipients of the cash purportedly used as bribe were identified and named and not all 40 of them as pleaded in the petition? Style of pleadings must not be the basis of throwing out grounds of petitions that could be substantiated at the trial unless the pleadings are so convoluted that one cannot make head or tail of what is being stated. That is not, with respect, what I saw in this petition.

125. To demonstrate the way the trial judge dealt with the petition grounds alleging bribery, Mr Hagahuno drew our attention to only three case scenarios, Bribery Case 1 –45 Street, Kainantu Town, Bribery Case 2 – Hogu villagers and Bribery Case 3 - Kainantu Rugby League Oval. Bribery Case 4 – Ino-onka villagers, Bribery Case 5 – Tirae villagers, Bribery Case 6 – Barola villagers and Bribery Case 7 – Joginofi villagers were all dealt with in the same way by the trial judge. All these grounds were pleaded in the same manner as the First Bribery Case Scenario that I addressed in the preceding paragraph which in my view were good enough to go to trial. But the trial judge applied the strictest of the strict rule to strike them all out in his scrutiny of the competency of the petition.

126. In doing so, his honour threw out the entire petition without even addressing the only ground on undue influence which is Ground C3 where the allegation was that on 25 June 2017, the night before the polling at Uminifintenu and Aga-anantu villages, the First Respondent through his campaign coordinator and committee man, Idom Dafari, promised to supply each voter roofing sheets and money, if they voted for him. While this allegation is expressed in 10 separate paragraphs, I reduced those ten paragraphs into just one sentence and that essentially was the thrust of that allegation. That to me was also good enough to go to trial and it was for the petitioner to prove the allegation in the trial.

127. I agree with Mr Hagahuno that little or inadequate attention and consideration is paid to section 217, 218 and 222 of the Organic Law during preliminary hearing of an election petition where Respondents take issue with the style of pleading in the petitions and move to strike out grounds or the entire petition itself.

128. I endorse the comments of and observations made by Kandakasi J (as he then was) in Steven Pirika Kamma v. John Itanu (supra) that the need for the National Court to be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities ought to come into play whenever a judge is dealing with an election petition. That is essentially the first part of section 217. The second part relates to evidence before the court that strict law or rule of evidence should not be applied in admitting evidence in an election petition trial.

129. The view considered and endorsed by the Supreme Court in Delba Biri v Bill Ninkama (supra) regarding section 217 of the Organic Law is simply an adoption of a single judge’s opinion in Mapun Papol v. Antony Temu and The Electoral Commission (supra) and does not extensively discuss the importance of that section which quite clearly sets out two distinct pre-requisites of procedural law in dealing with an election petition.

130. I adopt the views and sentiments of the Supreme Court in Philip Kikala v Electoral Commission (2013) SC1295 (Salika DCJ, Canings J and Kariko J ) that it is timely to revisit Delba Biri v Bill Ninkama (supra) and state clearly whether we need to continue to rely on that case authority as a good precedent to strike out petitions that according to individual judicial assessments or opinions fail to meet the standards of drafting correct petitions? In one view, we may have misread and misconstrued a good case precedent by rigidly and strictly applying its principle in the wrong sense when dealing with objection to competency applications and we started to articulate ways or invent new style of drafting or pleading the grounds of petition taking the whole exercise way out of reach of a layman to handle his own petition.

131. I do not think that Delba Biri v Ninkama (supra) is an authority to strike out petitions for not meeting the requirements or pre-requisites of section 208 generally at the preliminary stage of competency of a petition. The authority in Delba Biri v. Ninkama (supra) only comes into reckoning or contention at the trial of a petition where evidence is led and decision pronounced. If this Court takes this view of Delba Biri v. Ninkama, then Delba Biri still remains good law. But if this Court by majority feels that the authority is not reflecting the current thinking and development in the law on election petitions or is inhibitive to proper development of our own local jurisprudence on the law, then this court may over-rule it.

132. It will be remiss of me to not retrace my steps back to some earlier cases that have started this conversation about what I call as lip-service being paid to section 217 in the context of sections 218 and 222 of the Organic Law. Like the Deputy Chief Justice, I too was on the same bandwagon with the hardliners until the decision in an unreported judgment of Hinchliffe J in EP 73 of 2003 Benias Peri v.Nane Petrus and Andrew Trawen Acting Electoral Commissioner and the Electoral Commission (20/4/2004). From there the Supreme Court in Jimson Sauk v. Don Polye (supra) propagated this discussion further and thereafter a new wave of thinking was likewise entering the legal arena as far as the competency of petitions was concerned.

133. In Powes Parkop v. Wari Vele (No.1) (2007) N3320 the petition was grounded on allegations of bribery. There was an objection on the competency of the petition on the following, inter alia:

134. In rejecting and dismissing the objection to competency of the petition, this was my observation in my judgment:

“44. At this juncture of choosing grounds for trial and discarding those without merits, the trial judge has the ultimate discretion which of course must be exercised judicially. The discretion is exercised within the bounds of law and common sense.

46. Only one act of bribery needs to be proven for a petition to succeed and an entire election declared void. That is the law. Woods, J (as he then was) in Michael Mel v. William Ekip Wii [1993] N1178 reiterated this statement of the Law.

47. The Organic Law in making bribery and undue influence as the most serious of illegal or corrupt practices at elections which justified nullification of an election result secured through bribery and undue influence clearly reinforces the democratic principle of fairness and free exercise of franchise and is determined to forego the result reached under such evil and corrupt circumstances. Therefore, whilst election is a serious matter and the majority wish must be revered and respected, the law prescribes the means by which an aspirant for an elective including political office must get there. End does not justify the means.

48. In this regard I endorse the sentiments expressed in Jimson Sauk v. Don Pomb Polye (2004) SC769 by the Supreme Court in a review application following dismissal of petition at the preliminary hearing when it said:

‘We are of the view that what has been happening progressively since the early election cases such as Delba Biri v Bill Ninkama (supra) is as aptly described by Hinchliffe J in another election case, EP 73 of 2003 Benias Peri v Nane Petrus Thomas and Andrew Trawen Acting Electoral Commissioner and the Electoral Commission (unreported decision of 20/4/2004) when commenting on another National Court decision that had been relied on and referred to him:

“With all respect to the trial judge, it seems to me that his requirements to satisfy s 208 (a) were so demanding that if every petition was dealt with in the same way then no petition would ever get past the competency stage. Having said that it would also seem to me that we are making it more and more difficult for petitioners to proceed when that was not the intention of the Legislature in the first place. Our Legislators obviously saw a situation where the petitioner could appear on his own petition without a lawyer and in fact if a petitioner did wish to be represented by counsel then it had to be with the leave of the Court (see s 222 of the Organic Law). Clearly the preparation on and presentation of a petition and the subsequent Court appearance was meant to be relatively uncomplicated and fairly simple. Unfortunately we have allowed it all now to turn into a nightmare where even some of the most senior lawyers in the country are drafting petitions, which are being declared incompetent by our Courts and being struck out and thrown out. One wonders where it is all going to end. Clearly the differing opinion on where the material and relevant facts finish and where the evidence commences, needs to be cleared up, possibly by a five Judge Supreme Court. It must also not be forgotten that an election petition does not only involve two or three people as in a typical civil cause but it involves hundreds and sometimes thousands of people in the electorate. For those people to come to Court to hear an election petition then only to be told that it finished almost before it started because of what I consider to be technicalities must be extremely confusing and disappointing for those people who had come to Court to see that justice was done. In some cases whether justice was ever done or not will never be known because the case was never heard.” (Underlining ours.)

This Court must unreservedly and respectfully agree with and endorse those sentiments and concerns of His Honour. Because of the frequent nit-picking technical objection raised in the guise of real substantive issues of competency or jurisdiction (based either on ss.208, 209 and 210 Organic Law, supra, or ss. 50 and 103 Constitution), some very serious and wholesale irregularities, not to mention blatant illegal practices, at the campaign, polling and counting stages of an election more often than not escape judicial scrutiny and remedy. So much so that the constitutional authority whose direct duty and responsibility is to organise, conduct and complete free and fair elections jumps on the bandwagon, as it were, to suppress (or have struck out or dismissed) any complaints about or challenges to the conduct of the election.’

49. This is a very powerful statement that the Supreme Court has ever made in defence of election petitions and this Court is bound by what the Supreme Court has expressed. The Supreme Court justified its reasoning by examining the history of election petitions since the First National Elections after Independence where the then Chief Justice Frost then said in the Menyamya Open Parliamentary Elections [1977] PNGLR 298 at 300:

“The Organic Law thus givens full recognition to the common law principle that Parliamentary elections must be free. The people must be free to exercise their vote honestly, and to be able to go to the polls and give their vote without fear or intimidation. So essential is this principle regarded that even a single instance of such a corrupt practice, if committed by a successful candidate, requires the election to be declared void.”

50. Both are authoritative statements of law and wisdom that this Court is bound to pay heed to without reservation.

51. The end result is that the objection to competency is dismissed. The petition shall proceed to trial on all the remaining grounds from 9.1(a) to 9.1(g).”

135. And Salika DCJ (as he then was) also supported and adopted this view in Ben Semri v. Adolf Duangha (2013) N4989 as set out in paragraphs 71 and 72 of His Honour’s judgment while dismissing an objection to competency application. That was a case where the petition was grounded on bribery allegation and this is what His Honour said:

“71 The issue is, are the allegations of facts as pleaded in this paragraph sufficient for the purposes of s. 208(a) of the Organic Law. The petitioner would think they are. However, the Courts have widened the scope of that requirement under s. 208(a) to other provisions of the Organic Law such as Sections 218 where it uses the words or phrases “which did not affect the result of an election” or Section 215(3) where the phrase “the result of the election was likely to be affected”. The Courts have effectively “imported” into s. 208(a) words or phrases which do not belong to it. All s. 208(a) requires is “set out the facts relied on to invalidate the election or return. Should the issues raised under s. 215(3) and s. 218 be matters for evidence at the trial? Are the Courts in some cases driving the petitioner out from the judgment seat too early? I find support for this contentions from Kirriwom J who endorsed in Parkop v Vele, N3320 and quoted from a Supreme Court decision in Sauk v Polye (2004) SC 769 where that Supreme Court in turn quoted Hinchliffe J in the matter of EP 73 of 2003 Benias Peri v Nane Petrus Thomas and Andrew Trawen Unnumbered and Unreported decision of 20 April 2004.....

I agree with Kirriwom J (Parkop v Vele N3320) that this is a very powerful statement by the Supreme Court in endorsing Hinchliffe J’s statement and I join Hinchliffe J and ask, whether the importation of foreign words into s. 208(a) of the Organic Law from other provisions of the same law such as s. 215 or s. 218 are ever going to end. If they are required to plead such matters as “the results of the elections are likely to be affected” and “which did not affect the result of an election” then I respectfully agree with Hinchliffe J that no petition is ever going to get past the competency stage. The Courts should and must authoritatively state with clarity where facts required under s. 208(a) start and finish and where evidence begins.

73 I note that Kandakasi J has raised this very issue and commented on them several times which he alluded to again in Sanagke v Wimb&Ors 21 November 2012, Unnumbered with no end in sight though. Having said that I am of the firm view that paragraph (r) is sufficiently pleaded for the purpose of s. 208(a) of the Organic Law.”

136. Therefore, the writing has always been on the wall that there must come a time when the thinking had to change since Sauk v. Polye (supra) and reinforced thereafter in Philip Kilala v. Electoral Commission (supra) where the three-member bench presided by Chief Justice Salika expressed strong reservations about continuing reliance on Delba Biri v.Ninkama (supra). This is what the Court said:

“13. We agree that it is necessary to plead the elements of an offence of bribery and that it is desirable to plead the date and place of the alleged act of bribery – if they are known. However, we do not agree that it will be necessary in each case to plead the place at which the alleged bribery took place. In forming that view we have taken four important provisions of the Organic Law into account: Sections 208, 209 and 210 and Section 217.

14. Sections 208, 209 and 210 set out jurisdictional matters. Section 208 (requisites of petition) states:

(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

At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs.

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

17. The combined effect of Sections 208, 209 and 210 is that a petition must comply with six separate requirements (five in Section 208 and one in Section 209). If it fails to comply with all of them the petition will be incompetent and the National Court will lack jurisdiction to hear it (Jimson Sauk v Don Pomb Polye (2004) SC769).

18. In determining whether a petition is competent and whether the Court has jurisdiction, it is our view that the fourth provision of the Organic Law we have just mentioned, Section 217, should also be considered. Section 217 (real justice to be observed) states:

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

19. For many years the conventional view has been that Section 217 only applies once it has been determined that the National Court has jurisdiction, so that when the Court is determining objections to competency Section 217 should not be considered. This was the approach set out by the Supreme Court (Kidu CJ, Kapi DCJ, Andrew J) in SCR No 4 of 1982; Delba Biri v Bill Ninkama [1982] PNGLR 342, where the Court in a joint judgment held:

It is clear that [s 217] of the Organic Law is relevant only when the National Court determines the merits and when dealing with evidence before it as relevant to the merits. It is a procedural section only.

20. With respectwe consider that 31 years after Biri v Ninkama was decided it is time to take a fresh approach to Section 217. We do not see any good reason to say that it is fully applicable once the Court is determining the merits of a petition, but to ignore it when determining an objection to competency. Section 217 implores the National Court to take a special approach to the hearing of a petition, and this special approach – to be guided by the substantial merits and good conscience of each case etc – should begin the moment any aspect of the petition is before the Court for its determination, including when an objection to competency is made. (emphasis added)

21. The fresh approach we are referring to is not entirely new. In Ginson Goheyu Saonu v. Bob Dadae (2004) SC763, the Court (Sevua J, Gavara–Nanu J, Davani J) stated:

With respect, Courts cannot be dispensing justice when election petitions are thrown out even before they start.

22. In Jimson Sauk v Don PombPolye (2004) SC769, the Court (Sakora J, Sevua J, Gavara-Nanu J) urged the National Court not to be hamstrung by legal forms and technicalities when determining objections to competency...”

“37...it is not necessary to state the accused’s intention. As it is not necessary to plead in an indictment that the accused intended to bribe the other person or intended to procure the recipients’ votes, it follows that it is not necessary to make a similar pleading in an election petition. It is also not necessary, for the same reason, to plead all the facts in support of the elements of the offence. The learned primary Judge found the petition defective due to a failure to plead:

the words allegedly made or uttered by the second respondent to the recipients of the cheques for the petitioner to draw the conclusion and plead that ‘the payments were made with the intention to procure the recipients’ votes and also to induce them to be biased and solicit votes for him. These facts are not set out in each ground of the petition.

38. We consider that his Honour was insisting on a level of detail unwarranted by the simple requirement of Section 208(a) of the Organic Law that the petition “set out the facts relied on to invalidate the election”. If that level of detail were the required standard, the Court would be in effect expecting petitioners to plead evidence, in addition to alleged facts, which is contrary to the purpose of a petition (Holloway v Ivarato [1988] PNGLR 99, Siaguru v Unagi [1987] PNGLR 372, Karo v Kidu [1997] PNGLR 28, Karani v Silupa (2004) N2517).”

138. In conclusion I want to state that in Section 217 where the Organic Law speaks about “Real Justice To Be Observed”, it is the Constitution speaking and calling for real justice to be observed, which starts from the word go, when the Court is seized of an election petition. There should be no distinction between procedural and substantive issues as was determined in Biri v Ninkama (supra), which, with respect, was a misconception.

139. I find that the petition was competent enough to have gone to trial on the bribery allegations presented before us by the Applicant and therefore uphold the review on this ground and order them to be reinstated for substantive hearing before a different judge.

140. I order costs in favour of the Applicant to be proportionately paid by both the First and Second Respondents in this review.

141. MOGISH J: I have read the draft judgments of Kandakasi DCJ and Kirriwom J and Makail J and concur with their Honours conclusions and reasoning. I have nothing further to add.

142. MANUHU J: I concur with the reasoning and the conclusion by Kirriwom, J and the reliefs proposed by Makail, J. I would also add that sections 208, 209 and 2010 must be read and applied in conjunction with section 217 of the Organic Law.

144. Consistently, the majority decision in Paru Aihi v. Moi Avei (2003) SC720 held that “villager” is an occupation within the meaning of section 208, and that decision was binding on the trial Judge. In my view, therefore, with due respect, the trial judge fell into error when he followed the minority decision and made the erroneous finding that “self-employed” is not an occupation for the purpose of section 208 (d).

145. In relation to pleadings, section 208 (a) requires a petition to “set out the facts” and nothing more. The question of sufficiency of pleadings is a matter of course, subject to the substantial merits and good conscience of each case as envisaged in Section 217. A judge “shall be guided by” good conscience and the substantial merits of a case, i.e., without regard to technical biases, when dealing with an election petition.

146. Essentially, a losing candidate should be able to draft, file and prosecute his petition, and involvement of lawyers is restrictive. Thus, under section 222 of the Organic Law, a party to a petition shall not, except by consent of all parties or by leave of the National Court, be represented by counsel or solicitor; and in no case shall more than one counsel appear on behalf of a party.

147. In the context of this case, guided by section 217, I am also of the view that the stated facts of the four grounds of bribery are sufficient, and the trial judge erred when he found otherwise.
148. MAKAIL J: This is an application to review a decision of the National Court of 10^th December 2019 which dismissed an election petition for the Kainantu Open electorate as being incompetent.

149. The applicant had relied on the following grounds to invalidate the election of the first respondent:

(1) Illegal nomination of the first respondent constituting an illegal practice under Section 215 of the Organic Law on National and Local-level Government Elections (Organic Law on Elections);

(2) Seven (7) counts of bribery under Section 103 of the Organic Law on Elections; and

(3) One (1) count of undue influence under Section 102 of the Organic Law on Elections.

150. All of these grounds were dismissed on the grounds of insufficient facts contrary to Section 208(a) of the Organic Law. Secondly, the term ‘self-employed’ used to describe the occupation of one of the attesting witness is contrary to Section 208(d) of the Organic Law.

151. On 28^th February 2020 Justice Cannings sitting as a single judge of the Supreme Court granted leave to the applicant to review the National Court decision in relation to the ground on ‘self-employed’ as occupation of an attesting witness and grounds on bribery. I note that the substantive application for review referred to four grounds of bribery at (1) 45 Street (Kebe Street), Kainantu Town, (2) Hogu Villagers (3) Kainantu Rugby League Oval and (4) Ino-onka Villagers. Leave was refused in relation to the ground on illegal nomination. It is not clear if leave was granted to review the ground on undue influence.

152. However, at the hearing proper, the applicant made submissions in relation to the ground on the trial judge’s finding in relation to the word ‘self-employed’ as not constituting occupation and three (3) grounds of bribery at (1) 45 Street (Kebe Street), Kainantu Town (2) Hogu Villagers and (3) Kainantu Rugby League Oval.

153. It is not clear if the applicant pursued the fourth ground of bribery of Ino-onka Villagers. However, as no leave was expressly sought and granted by the Court to have this ground withdrawn, I am prepared to consider it.

154. I have read the well-researched judgments of Deputy Chief Justice Kandakasi and Justice Kirriwom and I am in complete agreement with their Honours’ reasons for the conclusion that the word ‘self-employed’ falls within the meaning of the word ‘occupation’ under Section 208(d) of the Organic Law on Elections for purposes of attestation of a petition. I agree that this ground of review be upheld.

155. I wish to make a few observations in relation to the dismissal of the grounds on the offence of bribery. At [B2:1] of the petition, the applicant introduced the grounds on bribery in the following general statement:

“The Petitioner relies on grounds of numerous instances of bribery committed throughout the electorate during the campaign period, prior to polling and at the time of polling, which acts were perpetrated by the First Respondent personally as well as through his associates, supporters, committees and or coordinators who are his authorised servants and or agents and which his knowledge, consent and authority contrary to and in breach of Section 103 of the Criminal Code Act as well as Section 215(1) of the Organic Law on National and Local Level Government Elections”.

156. I set out each of the bribery grounds as pleaded in the petition and pursued by the applicant in this review hereunder:

“1. On or about the 16^th of June 2017 between the hours of 2.00 pm and 3.00 pm a few weeks before polling and during the campaign period, the First Respondent who was the sitting member for Kainantu Open Electorate drove along the Kebe street in Kainantu town (now commonly known and referred to as ’45 Street’) in Kainantu town.

2. Along the same street was the Petitioner’s operational centre for his campaign, located at property Section 35 Allotment 08, where he was operating and running his campaign from.

3. On that particular day, there were close to a hundred people at the vicinity of the operational centre who were all waiting for the Petitioner. The First Respondent who was also a candidate for the Kainantu Open seat and was defending his seat as the member for Kainantu electorate drove along in his white open back Toyota Land Cruiser utility.

4. He was followed closely by his escort in another of his vehicles, a white Toyota Land Cruiser 10 seater troop carrier vehicle.

5. As he was about to pass through the Petitioner’s section of the street, he noticed a large number of people gathered both within the premises and outside on both sides of the street in front of the Petitioner’s operational office at Section 35 Allotment 8, all waiting to see the Petitioner.

6. The First Respondent stopped in front of the crowd who were waiting for the Petitioner. He got out of his vehicle and called the waiting crowd across to him. Seeing the sitting member stopping by and calling the crowd to him, most of those waiting were curious and moved quickly to form a circle around him on the street in front of the petitioner’s operations centre to hear what he had to say.

7. After the crowd had gathered around him, the First Respondent uttered the following words or words to that effect: “I know that all of your here are my brother (petitioner) supporters. I can tell you all that, of the 57 candidate contesting the Kainantu Open seat in this election, there are no better quality leaders than my brother (petitioner) and myself. Therefore, you shall all vote for either myself or my brother (petitioner) only. Give me your “1” vote and my brother “2” vote or give my brother your “1” and give me your “2” vote”.

8. He then proceeded to his open back Land Cruiser vehicle and took out K1,200.00 and told the group to divide into two groups. He called across one of the Petitioner’s co-ordinators and supporter from Hagunamura village, Mr Karu Wesley and gave him K600.00 on behalf of one group, to divided amongst his group.

9. He called across another of the Petitioner’s co-ordinators and supporter from Aga-anantu village, Mr BaroPomu and give him the other K600.00 on behalf of the other group to be divided amongst his group.

10. As per the First Respondent’s directions, both groups divided the money amongst themselves, some receiving K10.00 each while other received K20.00 each. After receiving the money, most supporters had left by the time the Petitioner arrived.

11. More than 40 people received and or benefitted from the K1,200.00 he gave them that day. Most of those who heard him and received the payment were influenced and induced by the payment in to voting for him and as they had received payment from him in broad day light, they felt obligated to vote for him. As a result, they changed their minds and instead of voting for the Petitioner, they voted for the First Respondent wherein, they gave him either 1vote of 2 as he had requested.

12. Some of those persons who were present on that day and were part of the group who witnessed and heard the First Respondent and received the payment and voted for him are set out in the table below.

*No.*		*Name of Voter*		*Village*		*LLG area*	*Polling location*	*Voter ID No.*	*Amount Received.*	*Vote* *Given*
1.		BaroPomu (2013)		Aga-anantu Village		Ward 1 Agarabi	Aga’anantu market	79013 3263	K20.00
2.	BuloIrufi			IfeiBarola Village	Kamano No. 1		Barola P/School	1776963771	K20.00	2
3.	BivaBaro			Aga-nantu Village	Ward 1 Agarabi		Aga’ana market	24912 56946	K20.00	1
4.	Timothy Hagahuno			Jamuza Village	Ward 4, Kamano No. 1		Kainantu P/school	76513 76431	K20.00	2
5.	OnriHava			Onki Village	Ward 4 Kamno		Yomposa P/School	61909 19259	K20.00	1
6.	Petrus Ohuma			Jamusa Village	Ward 4, Kamano 1		Yomposa P/School	43539 55261	K20.00	2
7.	Bobby Keraso			Jamuza Village	Ward 4. Kamano 1		Yomposa P/School	69608 12997	K20.00	1
8.	Duncan Hagahuno			Jamuza Village	Ward 4 Kamno 1		Yomposa P/School	61487 25410	K20.00	2
9.	Ezikiel Simon			Onki Village	Ward 4 Kamano 1		Yomposa P/School	36656 61090	K20.00	1
10.	Jasper Ifi			Tanaranofi Village	Ward, Kamano 1		Namura	42240 16124	K20.00	1
11.	Asime Peter			Orege Village	Ward 4 Kamano 1		Orege	4572142090	K20.00	1
12.	Lukaza Simon			Jamuza Village	Ward 4 Kamano 1		Yomposa P/School	30465 35077	K20.00	2
13.	Michael Unjisi			45 Street	Ward 4 Urban		Kainantu Primary	83141 17441	K20.00	1
14.	MainoKeraso			Jamusa Village	Ward 4 Kumano 1		Yomposa C/School	47091 32536	K20.00	2
15.	Bari Anke			Aga’ana Village	Ward 1 Agarabi		Aga’anantu	10336288	K20.00	1
16.	Kari Edna			Aga’ana Village	Ward 1 Agarabi		Aga’anantu	82408 87975	K20.00	1
17.	Doro Kerai			Aga’ana Village	Ward 1 Agarabi		Aga’anantu	75303 16311	K20.00	1
18.	Kaio Gee			Aga’ana Village	Ward 1 Agarabi		Aga’anantu	03624614	K20.00	1
19.	Sevin Taro			Uminif Intenu Village	Ward 5 Agarabi		Uminifintenu Basketball Court	74577 36084	K20.00	1
20.	MerianSevin			Uminifinatenu Village	Ward 5 Agarabi		Uminifintenu Basketball Court	75298 94822	K20.00	1
21.	Simon Patrick			Uminifinatenu Village	Ward 5 Agarabi		Uminifintenu Basketball Court	76211 37813	K20.00	1
22.	Jason Samson		Tanaranofi Village				Numara	2246772144	K10.00	1
23.	Sagi Nareka		Kainantu Hospital		Ward 2 Kainantu Urban		Kainantu Soccer field.	60864 99093	K10.00	1

13. The First Respondent did receive first preference and second preference votes from the various polling locations the recipients of the payments come from and voted.

14. The consequential act by the electors BaroPomu, Karu Wesley and those other electors names therein the table above and rest of the other elector in actual casting their preference votes for the First Respondent on the very day of voting after receiving moneys from the First Respondent actually and did indeed complete the performance of bribery pursuant to Section 103 of the Criminal Code Act Ch No. 262 and Section 215 (1) of the Organic Law on National and Local-Level Government Elections.

15. In that respect, the election of the First Respondent be declared void under section 215 (1) of the Organic Law on National & Local-Level Government Elections”.

“16. On or about Saturday the 15^th of May 2017, the Petitioner organised a campaign rally and “mumu” and launched his campaign at Hogu village which included, opening of the campaign house and unveiling of his posters. There was big support for the Petitioner and a huge crowd comprising the Petitioner’s supporters attended to witness the launching of the campaign.

17. The next day on or about Sunday 14^th of May 2017, during the campaign period, the First Respondent sent word for the Hogu villagers located within the Barola community, ward 6 in Kamano No. 1 LLG to go come down and see him at his residence on the lake side of Yonki named block 5 – Purumapa, Arona valley, OburaWonenara Electorate.

18. The villagers including men, women and youths totally about 100 people were electors, led by their village Court Magistrate Mr Simon Bugeme were picked up in two vehicles provided by the First Respondent, an Isuzu NPR truck and on open back Land Cruiser utility vehicle. The Isuzu did two loads down to the First Respondent residence at Yonki. The villagers arrived at his residence on the dam site in block 5 Purumapa, Arona valley, OburaWonenara electorate and met with the First Respondent.

19. At his residence, he welcomed them and accommodated them overnight. The next morning (on or about 15^th May 2017) he gathered them together and gave them K11,000.00 in cash. Before he handed the money over to the villagers, he stated the following words or words to that effect; “Since I had not given you services in the last five (5) years, I apologise, and now I am giving you K11,000.00 cash so that you come share the money amongst yourselves and vote for me”.

20. He stated further that K10,000.00 was for Hogu villagers whilst K1,000.00 was for the youths who had come down to find themselves drinks on their way back.

21. Mr Kivi Mamba who is one of the supporters and campaign co-ordinators of the First Respondent from UranteFamo village in Kamano No. 1 LLG which is a sister village of Hogu village, and who is very familiar with the Hogu village was instrumental in arranging for and inviting the villagers down to the First Respondent’s residence also advised and directed the First Respondent as to how to deal with the villagers.

22. The village people were led by Mr Simon Bugeme who is the village Court Magistrate and Chairman of Bush Kamano village court and Mr John Roy was also one of the community leaders. Both Messrs Bugeme and Roy received the money on behalf of the villagers.

23. Both recipients then divided the money amongst the villagers present, wherein each member of the group received K100.00 each. Mr Bugeme himself retained K500.00 which he used to buy beer on the way back to their village. The villagers were then dropped back at their village.

24. The K1000.00 given for drinks was used to buy beer for the youths on the way back to the village.

25. Some of those who travelled to see him and received the payment and subsequently voted for the First Respondent including the following people.

*No.*	*Name of Voter*	*Village*	*LLG area*	*Polling location*	*Voter ID No.*	*Amount Received.*	*Vote* *Given*
1.	Simon Bugeme	Hogu Village	Ward 6 Bush Kumano No. 1 LLG	Hogu Village	80564 88952	K500.00	3
2.	John Roi	Hogu Village	Ward 6 Bush Kamano No. 1 LLG	Hogu Village	74079 71088	K100.00	2
3.	PatezaMahazan	Hogu Village	Ward 6, Bush Kamano No. 1 LLG	Hogu Village	28134 94132	K100.00	1
4.	Henry Mahaza	Hogu Village	Ward 6 Bush Kamno No. 1 LLG	Hogu Village	67839 91262	NIL	NIL

27 (sic). The above electors were some of the people who were induced into voting for the First Respondent owing to the receiving of moneys from him wherein they gave him 1 vote. As a result the First Respondent received 12 votes from Hogu villages which include votes cast by the above named in the table.

28. The consequential act by the electors Simon Bugeme and John Roi and the electors names therein the table above and the electors in actually casting their first preference votes for the First Respondent on the very day of voting after receiving moneys from the First Respondent actually and did indeed complete the performance of bribery pursuant to Section 103 of the Criminal Code Act Ch. No. 262 and Section 215 (1) of the Organic Law on National and Local-Level Government Elections.

29. In that respect, the election of the First Respondent be declared void under section 215 (1) of the Organic Law on National and Local – Level Government Elections”.

“30. On Friday the 16^th June 2017 between the hours of 5.00pm and 6.00pm, exactly one week before the polling, the First Respondent drove into Kainantu town and invited the public at large to move quickly to at Kainantu Rugby League grounds.

31. After the crowd had gathered at the Rugby field and as it was getting late, he directed the crowd to quickly divide themselves into four groups under the respective Local Governments they come from, namely Kamano No. 1, Kamano No. 2, Agarabi and Kainantu Urban LLGs.

32. The crowd divided themselves quickly into four groups under the respective LLGs to where they belong. He then took out K12,000.00 in cash and gave K3,000.00 each to each of the four groups.

33. He called upon a representative each from each of the four groups to come forward and receive the money on behalf of those from the respective LLGs who had gathered and share it amongst themselves.

34. Mr John Sagi of Kainantu town who was a elector went to the First Respondent and received the K3,000.00 cash on behalf o the group comprising persons from Kainantu Urban LLG whilst Mr Kati Tesasi from Tapo community who also was an elector went and received the K3,000.00 cash for the group comprising persons from Kamano No. 1 LLG.

35. Somebody else received the K3,000.00 on behalf of those who has gathered from Kamano. No. 2 LLG and while another person received the K3,000.00 on behalf of those who gathered from Agarabi LLG.

36. As the representatives approached the money and received it from the First Respondent, he whispered to each of the recipients to share the money amongst their groups and tell those who receive money to vote for him.

37. Upon receiving the money, the representatives of the four LLGs returned to share the money amongst the persons who were present at the rugby field their group and shared money. After each one received their share of the money, they all left, being convinced that as long as the First Respondent remains in office, he will continue to dish out cash benefits to them.

38. As the First Respondent handed the money to John Sagi on behalf of the group from Kainantu Urban, he told him (John Sagi) to distribute the money amongst his group and tell those who receive the money to vote for him.

39. Mr John Sagi who received K3,000.00 on behalf of those present from Urban LLG divided the money equally amongst the group that was present who are residents of Kainantu two and told them what the First Respondent said.

40. Particulars of some of those persons who attended and received a share of the money and were induced into voting for the first respondent are set out in the table below;

*No.*	*Name of Voter*	*Village*	*LLG area*	*Polling location*	*Voter ID No.*	*Amount Received.*	*Vote* *Given*
1.	John Sagi	Blue Kona	Kainantu Urban LLG	Kainantu Soccer filed	67295 53332	K100.00	1
2.	Michael Unjisi	45 street	Kainantu Urbarn LLG	Kainantu P/School	83141 17441	K 20.00	1
3.	Pastor Kati David	Avive (Kurina)	Kamano No. 1 LLG	Urayopa	71230 90584	K 50.00	2
4.	AtusBogae	Orege	Kamano No.1 LLG	Orege field	50282 1725	K100.00	1
5.	Samuel David	Avive	Kamano No. 1 LLG	Urayaopa	13514 20813	K 20.00	2
6.	Owen James	Hagunu Mura	Kamano No.1 LLG	Bobonave Gravel pit	1925475669	K 20.00	2
7.	Kingsley Ike	Nonampa	Agarabi LLG	Yayabompa market		K 20.00	3
8.	Arike Bari	Nonampa	Agarabi LLG	Yayabompa market	41919 46338	K 20.00	1
9.	AvakAikisa	Nonampa	Agarabi LLG	Yayabompa market	28084 81887	K 20.00	1

41. The First Respondent received votes from all of the ballot boxes for Kainantu town urban, as well as from polling location specified in the table above.

42. The consequential act by the electors John Sagi, Pastor Kati Davidi and the other electors named therein the table above and other electors in actually casting their first preference votes for the First Respondent on the very day of voting after, receiving moneys from the First Respondent actually and did indeed complete the performance of bribery pursuant to Section 103 of the Criminal Code Act Ch. No. 262 and Section 115 (1) of the Organic Law on National and Local-level Government Elections.

41. In that respect, the election of the First Respondent be declared void under Section 215(1) of the Organic Law on National and Local-level Government Elections”.

157. Rather than setting out in full the allegations of fact pleaded at [44] to [53] of the petition, it suffices to point out that the allegations are the same sort of allegations pleaded in Bribery Case Two (2) – Hogu villagers except that it is in relation to Ino-onka villagers.

158. The first observation I make is that the statement of facts in each case of bribery is long-winded to the extent that the applicant could be accused of confusing the reader and also of pleading evidence rather than facts as required by Section 208(a) of the Organic Law.

159. The second observation I make is the converse of the first. A petitioner must be able to draft a petition that is brief and simple to understand, apply and not over plead or overdo it. Put it this way, the petition must not be too brief because it might be considered as insufficient and liable to be struck out and not too lengthy because it might also suffer the same fate for its lengthiness. It is all about striking a balance between the two extremes and bringing out the essential or material facts to support the ground of bribery.

160. The third observation I make is that the challenging aspect of pleadings has always been the identification of the essential or material facts and Section 208(a) of the Organic Law does not offer much assistance to the petitioners in their endeavour to identify and plead the essential or material facts. Section 208(a) states:

(a) set out the facts relied on to invalidate the election or return,....”. (My emphasis).

161. However, case law attempted to define the term ‘facts’. In Barry Holloway v. Aita Ivarato and Electoral Commission [1988-89] PNGLR 99 the Supreme Court observed thus:

“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”. (My emphasis).

“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 1258. What I observed above in relation to pleading of facts and what must be pleaded to constitute facts is reinforced by the Supreme Court decision in the Holloway case (supra). That is, the facts must not be long-winded but brief and must be essential or material to the ground of bribery. Further, they must not be evidence.

163. The offence of bribery under Section 103 of the Criminal Code is committed by one person against another or a group of persons. Under Section 215 of the Organic Law, a candidate-elected may be guilty of bribery if it is pleaded and established that he committed the offence in person or with his knowledge or authority.

164. Added to that, as the offence is allegedly committed during election time, the person bribed must be an elector and a statement that the person bribed was an elector would put the respondents on notice of this allegation. Furthermore, the property or benefit of any kind is a material fact and must be pleaded. Finally, of course the date, time and place of the commission of the alleged offence are material facts. They offer to the defence information about where to locate witnesses who were present at the material time and place to verify the allegation of bribery.

165. In this case, the trial judge’s decision to reject each of the grounds of bribery was based on these findings:

(a) As there are different instances in which an offence of bribery may be committed by the first respondent under Section 103 of the Criminal Code, it was important for the applicant to specify which one of them applied. For that, the applicant failed.

(b) The presence of the first respondent at the time of the alleged distribution of the cash was not pleaded.

(c) The alleged amount (sum) of money given to another (recipient) “in order to induce them and other persons to procure his return or their votes at the election” was not pleaded.

(d) The names of persons who benefited from the money distributed by the representatives and the total number of votes were not pleaded.

166. It is true that the offence of bribery may be committed in any of the instances prescribed in Section 103(a) to (g) of the Criminal Code. The second respondent submitted that as there are multiple instances where the offence of bribery may be committed, the applicant was obliged to specify which one of them applied. It sought support from the Supreme Court decisions in Ganasi v. Subam (2013) SC1277; Nomane v. Mori (2013) SC1242 and Fairweather v. Singirok (2013) SC1293.

“Finally, in relation to s. 103 of the Criminal Code, any party seeking to rely on this provision must set out the sub-provision they rely on because the elements in those sub-provisions are not the same and must be proven. E.g the elements to be proven in s. 103 (a) and s. 103 (c) are very diverse and will require credible evidence to prove each one. The Petition must plead that”.

168. The second respondent further submitted that while it is not necessary to plead the law, it is another thing to plead the specific offence of bribery given the different instances under Section 103 of the Criminal Code. With respect, I reject this submission. Where a petition plead facts constituting the offence of bribery, it is sufficient. To insist that the petitioner must specify which one of the different instances applied does not take the parties anywhere. It is another way of saying the petitioner must plead the law, that is, the specific sub-provision in Section 103 of the Criminal Code which has been breached.

169. Preferably, the applicant could have pleaded the relevant sub-provision of Section 103 but its omission would not disadvantage the defence in their defence of the allegation of bribery. It will be a matter for evidence to establish the type of bribery that the first respondent may have committed based on the primary facts pleaded in the petition. At the conclusion of all the evidence, parties’ final submissions will further address the issue for a decision to be made by the trial judge.

170. For these reasons, I find that a specific reference to which type of the offence of bribery was committed by the first respondent under Section 103 of the Criminal Code is not a material fact and the trial judge erred when he held that the applicant failed to specify the type of offence of bribery which the first respondent allegedly committed.

Failure to plead presence of first respondent at time of alleged distribution of cash

171. As pointed out at [162] supra, the offence of bribery may be committed by the first respondent in person or with his knowledge or authority. The general statement at [B2:1] of the petition which I have set out at [8] supra puts the defence on notice that the offence of bribery in each case was committed by the first respondent in person. If not, it was committed with his knowledge or authority.

172. As to the specifics, in the case of bribery at 45 Street (Kebe Street) on 16^th June 2017 between 2:00 and 3:00 pm while the factual allegations are quite lengthy but omitting the rest as being unnecessary, I am able to read that the first respondent gave K1,200.00 to a group of people. It was equally divided in the sum of K600.00 between two groups one led by Karu Wesley and the other by Baro Pomu. The first respondent told them to vote for him or the applicant by either giving vote one to him and vote two to the applicant or vice versa.

173. Each group divided the money amongst themselves and each person received either K10.00 or K20.00. A list of the names of persons who were present and the sum received are set out are in the table immediately below [12] of the petition. Amongst them is Baro Pomu. He received K20.00. These persons have been identified at [14] of the petition as being electors.

174. To my mind, these facts sufficiently establish or connect the first respondent to the offence of bribery and put the defence on notice that he was present and gave cash in the sum of K1,200.00 to the persons who were electors and told them to vote for him by either giving to him vote one or vote two. In other words, the first respondent was the person who allegedly bribed these persons.

175. In the case of bribery of Hogu villagers on or about Saturday 15^th May 2017, again, while the applicant must be criticised for pleading a lengthy set of factual allegations, cutting out the unnecessary facts and retaining the essential or material facts, I am able to read that the first respondent gave K11,000.00 to a group of people from Hogu village who had visited him on his invitation at his residence at Lake Side at Yonki. The group were from Hogu village and supporters of the applicant.

176. Simon Butene, a Village Court Magistrate and John Roy, a community leader from Hogu village received the money from the first respondent and the first respondent told the people that he did not deliver services to them in the last five years and the money was to make up for the lost time and also for them to vote for him.

177. Out of the K11,000.00, K1,000.00 was given to the youths and the balance of K10,000.00 was shared among the people. Each person received K100.00 while Simon Bugeme received K500.00. A list of the names of persons who were present and the sum received are set out in the table immediately below [25] of the petition. Among them are Simon Bugeme and John Roy. These persons have been identified as electors as [27] of the petition. Even their voter ID numbers were given at column 6 of the table.

178. Again, to my mind, these facts sufficiently establish or connect the first respondent to the offence of bribery and put the defence on notice that he was present and was the person who gave cash in the sum of K11,000.00 to the persons who were electors and told them to share the money and vote for him. In other words, the first respondent is the alleged perpetrator of the offence of bribery.

179. In the third case of bribery at Kainantu Rugby League Oval on Friday 16^th June 2017 between 5:00 and 6:00 pm, again, disregarding the unnecessary factual matters and focussing on the essential or material facts, I am able to identify the follows facts: the first respondent gave cask of K12,000.00 to a large group of people. The money was divided among them. The people divided into four groups and K3,000.00 was given to each group.

180. A representative of each group received the K3,000.00 from the first respondent and he told them each of them to distribute the money to their group and tell them to vote for him. A John Sagi who was an elector received the K3,000.00 from the first respondent and distributed the money. He also informed those who received the money to vote for the first respondent. John Sagi received K100.00. Again, a list of the names of persons who were present and the sum received are set out in the table immediately below [40] of the petition. These persons have been identified as electors at [42] of the petition and even their ID numbers have also been given in column 6 of the table.

181. Again, to my mind, these facts sufficiently establish or connect the first respondent to the offence of bribery and put the defence on notice that he was present and was the person who gave cash in the sum of K12,000.00 to the persons who were electors and told them to share the money and vote for him. This type of pleading presents two case scenarios.

182. First, the first respondent is the alleged perpetrator of the offence of bribery. This case scenario would apply if John Sagi is the recipient of the K3,000.00 and is called as a witness to testify against the first respondent. Secondly, the offence of bribery is committed with the knowledge or authority of the first respondent. In that case, John Sagi is the facilitator or connection between the first respondent and the ultimate recipient of the money. The first respondent will be alleged to have knowledge of the bribery because he was the person who gave K3,000.00 to John Sagi to distribute and/or authorised John Sagi to distribute the money and tell the recipient(s) to vote for him.

183. In a case of bribery of Ino-onka villagers in or about mid June 2017, again, while the applicant must be accused of pleading a lengthy set of factual allegations, cutting out the unnecessary and retaining the essential or material facts, I am able to read that the first respondent gave K2,000.00 each to four clans which totalled K10,000.00 (arithmetically, it should be K8,000.00). These clans are Janofi, Oginofi, Kremenofi and Amaginofi. The sum of K2,000.00 was given by the first respondent to each named or identified representative of the clan at the first respondent’s residence at the lakeside at Arona Valley.

184. Out of the K10,000.00, Hoveten Juben received K50.00, Maino Boski received K50.00, Trako Bini received K50.00 and Boas Jamzo received K50.00. These persons have been identified as electors at [50] of the petition. Also, their voter ID numbers have been pleaded at column 6 of the table. Finally, I note that the element of intention or act of inducement or procurement is borne out in the statement at [50] of the petition in the following manner “.........those who received a share of the money and felt obligated to vote for the First Respondent”. As to whether the element of intention will be proven is a matter for trial.

185. These facts, to my mind, sufficiently establish or connect the first respondent to the offence of bribery and put the defence on notice that he was present and was the person who gave cash of K10,000.00 to the persons who are electors and they felt obligated to vote for him or that he had knowledge or authorised the named clan representatives to distribute K10,000.00 to persons listed in the table to vote for him.

The alleged amount (sum) of money given to another (recipient) “in order to induce them and other persons to procure his return or their votes at the election” was not pleaded.

186. I have addressed this finding by the trial judge in the earlier part of the judgment and it is not necessary to repeat it. The only point I wish to make is that, the way the inducement to procure the return of the first respondent or their votes at the election is an expression adopted from the terms of Section 103 of the Criminal Code. It is a matter of style rather than substance. I do not believe that a petition based on bribery grounds that fails to be expressed in those terms falls short of meeting the requirement to plead ‘facts’ under Section 208(a) of the Organic Law on Elections. To insist on the applicant to express the element of inducement to procure in identical terms to what Section 103 states, this is where the trial judge fell into error.

The names of persons who benefited from the money distributed by the representatives and the total number of votes were not pleaded.

187. I have addressed the finding by the trial judge in relation to the name of the person who benefited from the money distributed by the representatives not being pleaded. I found that the names of those persons have been pleaded and it is not necessary to repeat it.

188. The indication is, there are 23 persons in the case of bribery at 45 Street, 4 in the case of bribery of Hogu villagers and 9 at Kainantu Rugby League Oval. We have a total of 36 persons identified by the applicant in the petition who were allegedly bribed by the first respondent. The real question is whether the applicant will be calling all of them to testify against the first respondent at trial.

189. The point I am making here is that, this is an example of a lengthy pleading that will not assist the parties and the Court if the applicant decides to just call one or two of them at the trial. This will be a waste of time and preparation including costs. I make this observation because under Section 215(1) of the Organic Law on Elections, one proven act of bribery is sufficient to void the election of the first respondent. For these reasons, I am satisfied that the facts as pleaded by the applicant sufficiently identify the persons or recipients of the money and this is where the trial judge fell into error.

190. I now turn to the trial judge’s finding in relation to failure by the applicant to plead the total number of votes that have been affected. This finding is unnecessary and inconsequential because it is not a material fact to prove bribery. This is a further glaring error that is apparent on the face of the record (judgment).

191. The approach I have taken to address the question of adequacy of the facts constituting the grounds of bribery is consistent with the practical reality of legal drafting where a petitioner who is represented by a lawyer of many years experience or a recently admitted one or even a self-represented litigant (petitioner) is confronted with when drafting a petition to challenge the result of an election.

192. It is also consistent with Section 217 of the Organic Law which implores the Court to exercise restraint and not to be too strict and technical when deciding whether an election petition should be upheld or dismissed. A call has been made to extend the application of Section 217 (supra) to cases where the Court is hearing and deciding an objection to competency such as in this case.

193. I am indebted to their Honours the Deputy Chief Justice and Justice Kirriwom on their detailed discussions on the question of whether Section 217 (supra) should also apply at the hearing of an objection to competency of an election petition. I respectfully endorse their views and the conclusion.

194. In conclusion, except for a lengthy set of factual allegations and I repeat, the applicant should be criticised for this, the essential or material facts have been pleaded by the applicant and the grounds of bribery should be allowed to be proven. It would be a different story if the applicant did not plead the name of the person (recipient) and/or the act of inducement to procure or offer, in this case, utterance of words to the effect that the recipient vote for the first respondent and/or the property or benefit of any kind, in this case, money to constitute the grounds of bribery. Where these facts are missing, there would be grounds for the trial judge to strike out the grounds of bribery.

195. The errors identified in the trial judge’s findings are sufficient to uphold the review, quash the decision of the trial judge which dismissed the petition as being incompetent, reinstate the election petition and remit it for trial on the four grounds of bribery that have been upheld as being competent.

BY THE COURT:
193. In the final analysis, by unanimous opinion the review is upheld, the petition is reinstated and ordered to go to trial on all its grounds that went on review and given leave. We order costs in favour of the Applicant to be shared proportionately between the First and Second Respondents. The Applicant’s security deposit of K5,000.00 be refunded to him forthwith.

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William Hagahuno Lawyers: Lawyers for the Applicant
Paul Mawa Lawyers: Lawyers for the First Respondent

Supreme Court of Papua New Guinea

Hagahuno v Tuke [2020] PGSC 105; SC2018 (2 October 2020)