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Paua v Ngale [1992] PGNC 59; N1119 (22 October 1992)

N1119

Papua New Guinea
[In the National Court of Justice]

MP 187 of 1992

JOEL PEPA PAUA
Petitioner

V

ROBERT TIMO NGALE
1st Respondent

ELECTORAL COMMISSIONER
2nd Respondent

Mount Hagen: WOODS, J
22 October 1992

Parliament - Elections - Disputed Returns - Errors and Omissions - Failure to plead material facts - failure to plead tally figures to show election could have been affected.

Cases Cited:
Holloway v Ivarato [1988-89] PNGLR 99
Laina v Tindiwi [1991] N979

J Wal for the Petitioner.
S Norum for the 1st Respondent.
R Bray for the 2nd Respondent.

22nd October 1992.

WOODS, J.: This is a Petition disputing the validity of the Election for the Mul Baiyer Open seat in the Western Highlands Province in the 1992 National Elections.

The Respondents have moved the Court to strike out the Petition on the basis that the Petition does not comply with the provisions of Section 208 of the Organic Law on National Elections.

Generally the submissions raised by the respondents have been that the various clauses in the Petition fail to specify the facts relied on to invalidate the election. As to what facts are required has been determined by the National and Supreme Courts in various cases the main statements being in the case Holloway v Ivarato [1988-89] PNGLR 99. I will not repeat these statements here but note that I rely on the principles so stated.

Most of the allegations raise questions as to the actions of electoral officials in the conduct of the Poll and the counting and the overall impression of the Petition, and this is supported by the submissions of the lawyer for the Petitioner, is that the Petitioner initially wants a recount of the votes to be sure that the checking of the votes and the counting of the votes was done properly. So it is not so much clear allegations that there have been omissions and errors by the officials which must invalidate the election but rather that certain things happened which has raised doubts. I am not so sure that the Court is here just to make everybody happy that the counting was done properly, we are here to consider whether an election should be declared void if there is clear evidence which suggests that. If we were here just to make everybody happy that the counting was done properly then we would be usurping the role of the Electoral Commissioner and spending a lot of time after every election just satisfying all the losers. The Court has taken a very strict position on the filing and hearing of election petitions and requires strict compliance with the Act. Further the court has taken a strict view of its role in looking for the evidence. It is not the role of the court to draw possible conclusions or infer possible situations. The court requires clear evidence of errors and omissions, we cannot just assume there may be a possibility of errors and omissions. Too often the time of the Court has been wasted when clear evidence has not been presented and the parties have asked the court to infer more than the evidence shows. As I said in Laina v Tindiwi 1991 N979 and as advice to prospective candidates.

"If Petitioners are going to questions boxes like this it is essential to have evidence to support their allegation and then to take steps to secure access to any relevant documentation as soon as the possibility of errors became known. The Petitioner should have taken steps in August last year when he filed the Petition to secure access to such documents by Court Orders before the matter got too old. And of course scrutineers have an obligation to keep their own notes of boxes delivered and counted if it appears that there may be irregularities."

And I now add as further advice that if your scrutineers have not got the facts and evidence ready at the time of polling and counting to show clear irregularities then you may be wasting your time presenting a petition as you may not have sufficient facts to help you draft your Petition properly.

If the main thrust of your Petition is errors and omissions of electoral officials then I must emphasise the law which is quite clear that such can only vitiate the election if it is quite clear to the court that the result of the election is likely to have been affected and that it is just that the candidate be declared not to be duly elected. These principles have been clearly stated in many cases.

Clause 1 of the Petition recited that polling did not take place at the exact dates and times originally scheduled.

Whilst that situation is adequately covered by section 117 of the Organic Law on National Elections the clause goes on to suggest that there may have been an opportunity to tamper with the boxes during or after the polling. However the allegation does not state a conclusion and recite any clear allegation of facts that would lead to an error or omission. There is no allegation which suggests any irregularity in the actual polling such as that there were more votes in the boxes than the Common Roll would have suggested from the population of those polling areas, or that non registered persons voted or such like. This allegation is to vague and I rule that it should be struck out.

Clause 2 refers to a ballot box being smashed open and papers having to be collected by hand. But what is the irregularity in the polling. There is no clear allegation of tampering with votes or such like. We do not know what is being alleged. This is too vague and therefore this clause should be struck out as not pleading sufficient material facts.

Clause 3 refers to some initials being on the ballot papers in a particular box. However there is no specific allegation of an error or omission. Of course all ballot papers must be initialled on the back. I am not satisfied that there is a sufficient allegation to warrant a consideration of this clause. This clause is struck out.

Clause 4 refers to a box containing 7 extra votes and to the counting having to be adjourned. But there is no allegation of the votes being improper or irregular or not being considered as being informal. The Petitioner just seems to want a recount to be sure. This is not the role of the court. We will only consider a recount if there are sufficient errors and omissions which suggest that the election has not been a true and fair election and the result could have been affected. This clause should be struck out.

Clause 5 refers to the Assistant Returning Officer refusing to advise the scrutineers of figures. But what is the result of this. There is no allegation that the counting or the tallying of figures was wrong. This seems to be merely a fishing expedition. There are no material facts alleged which warrant the calling of evidence so this clause is struck out.

The objection to Clause 6 was conceded to by the lawyer for the Petitioner so this clause is struck out.

Clause 7 refers to a ballot box not being certified properly by the presiding officer. Details of the votes in that box are given in the clause. Initially I am satisfied that in itself this clause may raise sufficient material facts to warrant the bringing of evidence. However when looked at in the whole Petition it is not clear what would be the effect of any errors and omissions here. Thus whilst we are given the details of how many votes may be involved in the Box nowhere in the petition is it stated what the effect of this number of votes would be namely what was the winning margin and therefore how a consideration of these votes can affect the winning margin. Most Petitions recite at the beginning what the winning margin is and then by alleging irregularities with numbers of votes it would be clear that if the evidence supported the allegations the court would see whether there was a possibility that the result may have been affected. However here we do not know on the face of the petition what any irregularity with these votes added to any other irregular votes would be. So the effect of the allegation is not pleaded. As I said at the beginning of this judgement the courts have taken a strict view on the filing and hearing of Petitions being as they are a challenge to the stability of a new Parliament and therefore a challenge to the stability of the government of the country. So this omission to the material facts that should be pleaded means that whilst the clause appeared in itself to plead sufficient material facts the effect of these facts is not clear. Therefore this clause must be struck out.

Clause 8 refers to a discrepancy in the number of votes polled and the number of votes in the progressive total presumably on the Tally Board. Whilst in itself this clause may appear to recite sufficient material facts to warrant the calling of evidence it falls into the same problem as Clause 7 namely what is the effect of this discrepancy if it is proved, thus what was the winning margin such that this discrepancy added to any other discrepancies may have affected the election. Therefore this clause must be struck out for the same reason as Clause 7.

Clause 9 refers to votes being cast in the name of deceased persons and of ineligible children. However there are no details, how many votes are alleged, what are the names or at which polling booths did this happen. This allegation is too general, there are no material facts to warrant the calling of evidence so this clause is struck out.

The objection to clause 10 was accepted by the lawyer for the Petitioner so this clause is struck out.

Clause 11 refers to a number of voters being taken from one polling booth to vote at another polling booth. The suggestion is that this meant that the voters may have been unduly influenced to vote for the 1st respondent. However it is not alleged that these voters were deprived of their right to vote for whom they wanted. The clause is not saying that they were forced or otherwise to vote for someone other than the candidate of their choice. I am not satisfied that there are sufficient material facts stated here which would warrant the court receiving evidence and the clause is therefore struck out.

The above covers all the allegations raised in the Petition and I have found that all allegations must fail I therefore dismiss the Petition.

Lawyer for the Petitioner: Amnol & Company
Lawyer for the 1st Respondent: Joseph Mek Teine Lawyers
Lawyer for the 2nd Respondent: Pato Lawyers