Karani v Silupa [2004] PGNC 249; N2517 (16 March 2004)

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PARLIAMENT – National Elections – Disputed Returns – Electoral Roll – Correctness of – No inquiry permitted – Roll is Correct – Presumption of law – Organic Law on National and Local Level Government Elections, s.214.

PRACTICE AND PROCEDURE – Election Petition - Correctness of Electoral Roll - Not subject of inquiry under Part XVIII Organic Law on National and Local Level Government Elections – Petition incompetent – Petition dismissed - s.214 OLNLLGE.

PRACTICE AND PROCEDURE – Election Petition - Pleading – Need to plead relevant facts in precise, comprehensible, coherent and concise manner – Petition badly pleaded and incompetent – Petition dismissed – ss.208 (a), 210 OLNLLGE.

PRACTICE AND PROCEDURE – Election Petition - Pleading – Failure to adhere to polling schedule – No ground for petition – Petition incompetent – s.117 OLNLLGE

Petitioner grounded his petition to the court of disputed returns to invalidate the election and the returns for Lufa Open Electorate following his loss to the First Respondent in the election for parliament principally unhappy with the huge number of enrollments in the First Respondent’s Ward within the Electorate that far exceeded its total population that was recorded only two years before the election in the national census survey conducted for purpose of the election, held, inter alia:

Cases cited:
See Fox –v- Stirk and Bristal Electoral Registration Officer (1970) 2 QB 463 at 475.
See EP No. 32 of 2002 – Dr John Waiko –v- Peter Oresi and EC [2003] Unreported National Court Judgment – 13 February, 2003
Delba Biri v Ninkama [1982] PNGLR 342
In re Kavieng Open Electorate - Ben Micah v Ian Ling Stuckey [1998] Unreported National Court Judgment – N1790
Neville Bourne v Manase Voeto [1977] PNGLR 298
Sir Barry Holloway v Aita Ivarato and the Electoral Commissioner [1988] PNGLR 99
Siaguru v Unagi and the Electoral Commissioner [1987] PNGLR372
Raymond Agonia v Albert Karo and Electoral Commission [1992] PNGLR 462
John Wemin Mili V Simon Philip Gaima & Electoral Commission [1997] N1618
Norman Walter Fernandez V Philip Taku & Electoral Commission [1997] N1616
Komane Assano Wasege V Mathias Karani [1997] N1679
Perkins –v- Cusack [1930] HCA 3; (1929) 43 CLR 70
In re Berrill’s Petition [1976] HCA 50; (1976) 134 CLR 470
Darlinghurst Petition (1951) 51 S.R. (NSW) 204
In re The Nash Election Petition – Grant v Dunstan and Carney [1952] St. R. Qd. 53
In the Matter of Central Provincial Government Elections - Mathew Poia v Valerian Valai & Electoral Commission [1990] PNGLR 388

Counsel:
P. Ame for the Petitioner, Mr Karani
C. Copland for Mr Siluwa, 1st Respondent
T. Sirae for the Electoral Commission, 2nd Respondent

KIRRIWOM, J.: This is a petition by the runner-up in the Lufa Open Electorate of Eastern Highlands Province in the 2002 National Elections, Mathias Karani, who was unseated by the First Respondent for that electoral office. The Petitioner was running for his third consecutive term in Parliament when defeated in the polls under circumstances that is now the subject of this petition.

At the close of counting for the Lufa Open Electorate at the Goroka National Sport Institute Counting Centre the First Respondent collected 5,911 votes. The Petitioner came second by polling 4,738 votes with a difference of 1,173 votes.

It is important to note that 3,829 of the First Respondent’s votes were from Kotomi Ward 27 alone and this Ward is the First Respondent’s home – base. In reality, as can be seen from the figures examined of the votes cast later in this judgment, these were the votes that propelled the First Respondent to his ultimate victory over the Petitioner.

What really underpins this petition speaks for itself from what the Petitioner did both before and subsequently following the election when the results were declared. This appears from the Petitioner’s own evidence.

The Petitioner was astounded by the large number of voter turn out in Kotomi Ward 27 alone on the day of polling on 21 June 2002 who voted that propelled the First Respondent from practically nowhere to win in the end. He had noted before the elections started that the revised Common Roll for the 2002 National Elections for Lufa Open Electorate was highly exaggerated by what seemed clearly to him an inflated voter-population enrolled in Kotomi Ward 27. This was not logical compared with the National Census records for 2000.

Kotomi Ward 27 alone recorded 3,829 votes cast in the election and only 31 of which escaped the First Respondent’s basket at the counting. Otherwise all those votes belonged to the First Respondent and those were his winning votes.

The common roll for Kotomi Ward 27 shows a voter population of 3,786 which shows that 43 more people voted in the elections than those registered in the Common Roll. This Ward is made up of six to seven villages with many different clans. Fima alone which is the First Respondent’s village is made up of ten clans with a combined total population of 392 eligible voters. The highest number of eligible voters in a single haus-lain is 674 from Segeya followed by Kiporagana with 433 and all the rest are from 393 and downwards. But compare these figures with Tables 2 and 3.

The only other Ward with a high voter turn out in the election, again, according to the Tally-Sheet, is Oliguti Ward 23 with 1,754. This figure is still even less than half of the total number of eligible voters for Kotomi Ward 27. One could say that this is probably because Oliguti had 4 polling teams whereas Kotomi Ward alone had 6 polling teams. But polling teams are assigned according to the size of voter population.

The 2000 National Census figures showed that Kotomi Ward had a total population of 3,572 people in the year 2000 which included adults and children under voting age (see Tables 2 and 3). However, only two years later the total population of Kotomi Ward 27 is outnumbered by its eligible voter population of 3786. Clearly there was something wrong.

A difference of some 43 surplus voters who voted at the election to the total number of eligible voters registered in the common roll for Ward 27 also added further fuel to the Petitioner’s suspicion that the entire election in the Kotomi Ward 27 was rigged.

Troubled by these figures in the common roll, the national census figures, excessive votes to the entire voting population of Gotomi Ward recorded in the Tally Sheet, the Petitioner filed this petition.

At the outset therefore, the petitioner’s petition is founded on this disagreement regarding the state of the roll. Illegal practices of double voting, absentee voting, ghost votes and so forth are alleged and pleaded in the petition to substantiate the petitioner’s suspicions that the whole election at Kotomi Ward 27 was a deliberate and calculated fraud on the electoral system by the First Respondent with the involvement of voters from other neighbouring electorates sharing borders with Lufa..

It must be noted also that the Petitioner took issue with the 2002 Lufa Open Electorate Common Roll particularly in relation to voter enrolments in Kotomi Ward 27 well before the National Elections were conducted. On February 18, 2002 he wrote to the Provincial Administration of Eastern Highlands to make available funding for Kotomi Ward to be revisited and enrolment be redone before the Election because there were irregular increases and discrepancies and huge number of students listed on the common roll.

Eastern Highlands Provincial Administration made available K2,000.00 for this task but it was not taken up by the Electoral Commission and nothing was done and the election proceeded without this complaint being addressed. I accept the Petitioner’s evidence on this.

So whatever the state of the law maybe as concluded by the court’s ultimate finding in this case, the Petitioner had and still has a legitimate cause for concern either with the state of the roll in respect of this particular Ward 27 in Lufa Electorate at the time of the election or lack of satisfactory response and action by the Electoral Commission on his request prior to the election.

It is a matter which the Electoral Commission as the watchdog on the integrity of elections and electoral roll must forthwith investigate and if there is any substance in this complaint, appropriate steps be taken to correct it before the next elections which are also drawing near. The Organic Law makes adequate provisions for appropriate measures to be taken where there is any disagreement with enrolments.

The petition is drafted in such manner and style that to try to understand the pleading is an exercise that no one would envy. It is so distorted and so vague, too general and imprecise, too shallow and incoherent to say the least. The petition is seemingly founded on what is alleged to be undue influence and illegal practices. This is based on an wholesale accusation of conspiracy between the First and Second Respondents, who through their servants and or agents, involved in various illegal activities to procure the First Defendant’s win in the election.

Doing the best I can, I have summarized the grounds below in the way as I understand them. Ultimately, this petition is going to be determined on whether:

In approaching the petition in this manner, I am mindful of the fact that this petition was resurrected by the Supreme Court after its demise following successful application on the objection to competency.

On the 10th April 2003[1] the National Court sitting in Goroka dismissed this petition on the basis that all the grounds were incompetent as they failed to meet the requirement of section 208(a) or they were prohibited by law from questioning the common roll under section 214 of the Organic Law.

The Petitioner filed a Supreme Court review of that decision and on the 15th August 2003 the Court upheld his review in part and ordered re-instatement of ground 7, 7.1, 7.2, 7.3, 7.5, 7.5(C), 7.5(D), 8, 9 (A) – (C) and 12.[2] I am grateful to counsel who made available copy of that decision to me. I have however not been accorded the benefit of the full Supreme Court’s reasoning for its decision as promised in its two-page judgment[3].

After the commencement of polling on 15th June 2002 in the Eastern Highlands Province and on the 21st of June 2002 for the Lufa Open Electorate, the First Respondent together with his servants and or agents committed several acts of undue influence and illegal practices with the knowledge and authority of the First Respondent against the registered or eligible voters of the First Respondent, and with the intention to interfere unlawfully in the free voting in the elections by voters, thereby contravening Sections 50, 126(3), 26, 43, 52, 113, 115, 130, 131, 133, 134 and 215 of the Organic Law on National and Local Level Government Elections, and Sections 99, 100, 101, 102, 105, 106 and 116 of the Criminal Code.

In Lufa Rural Local Level Government Ward 27, there are 3,572 persons recorded by the 2000 National Census and maintained by the National Statistical Office as being in that area including adults and children under voting age. However in the 2002 Common Roll for Lufa Open Electorate and in this particular Ward, there are 3,854 eligible or registered voters. This is alleged to be contrary to Section 116 of the Criminal Code and contrary to logic and common sense.

It was alleged that polling was conducted over two days in Kotomi on 21 and 22 June 2002 at which 3,940 electors voted in LLG or Local Level Government elections, 3,860 voted in the Open Electorate and 3,861 voters cast their votes in the Regional Electorate. It was further alleged that out of 3,860 votes cast for the Open electorate of Lufa, 3,829 voted for the First Respondent..

It is alleged that the actual eligible voter population in Ward 27 is less than 2,500. The 2002 Common inflated this figure by enrolling under aged school students, deceased persons, ghost names, persons no longer living in Ward 27, duplication of names and the various illegal practices and irregularities referred to in paragraphs 7.5(A) were perpetrated by First Respondent and his servants and agents to ensure all ballot papers are completed in his favour.

As a result of illegal practices the First Respondent polled 3,829 votes to win thereby contravening various provisions of the Constitution, Organic Law and Criminal Code.

It is alleged that the First Respondent by himself and with his supporters transported close to or about 705 people from Ungai/Bena electorate to come and vote at Gotomi (The petition sets out 705 names of persons allegedly voted in Gotomi who were not eligible to vote at that Ward and in that electorate).

It is alleged that 287 persons registered in Henganofi Electorate were transported to vote in Lufa Open Electorate by the First Respondent personally and through his servants and or agents. They were alleged to be from Ward 28 in Henganofi Electorate of Nentasirumpa village who are alleged to have double-voted and used under-aged voters contravening Sections 25(2), 52(2), 131, 132, 133, 134 and 215 Organic Law on National and Local Level Government Elections and Section 99, 100, 102, 105 and 106 Criminal Code.

It is alleged that on 21 June 2002 the First Respondent and his supporters induced ineligible voters to cast their votes at Gotomi Primary School and names 45 persons at Silupa village, 48 people at Segeya Village, 142 people at Haga No. 1 village (New Market), 63 persons at Fima Village (Ifafi Mountain) and 5 persons at Nupamana village as ineligible under aged voters who cost their votes in Gotomi Ward 27 hereby contravening Section 126(3) of the Constitution and Section 25(2), 52(2) and 215 of the Organic Law.

It is alleged that on 21 June 2002 at Gotomi School the First Respondent and his supporters either induced, coerced or intimidated ineligible voters including those no longer resident in Gotomi Ward to cast their vote in Lufa Open Electorate and names 23 persons with Voter ID numbers thereby contravening Section 215 Organic Law.

It is further alleged that on 21 June 2002 the First Respondent and his supporters either induced, coerced or intimidated 29 eligible and ineligible voters from Henganofi and Ungai Bena Electorate at Forafi Ward 25 to vote in Lufa Open Electorate. It is also alleged that these names were duplication of names of persons no longer resident in the Electorate thereby contravening Section 215 Organic Law.

It is alleged that on 21 June 2002 the First Respondent and his supporters wither induced, coerced or intimidated 41 persons from Ungai/Bena and Henganofi Electorates to vote in Lufa Open Electorate at Gotomi School using names of 41 former residents of Gotomi Ward who had since left and no longer resided within Ward 27 or Gotomi area thereby contravening Section 215 of the Organic Law.

It is alleged that the Second Respondent through his servants and agents committed illegal acts and was guilty of improper practices at the elections in that on 21 June 2002 moved or relocated polling to Gotomi Community School away from their Official designated polling places as directed by the First Respondent and names five polling teams.

It is alleged that the Second Respondent in collaboration with the First Respondent combined 5 polling teams designated for Gotomi Ward 27 and set them all up at Gotomi Community School about 40 metres apart from each other and permitted double voting in the names of deceased persons appearing on the common roll, absent or non-existent persons whose names were on the common roll as well as ineligible voters to cast their votes thereby contravening Section 215 Organic Law.

It is alleged further that no free election was conducted at Gotomi Community School grounds on 21 June 2002 and therefore 3,542 votes that the First Respondent purportedly collected from this particular Ward at Gotomi Community School be rejected and the First Respondent’s declaration as winner is null and void pursuant to Section 215 Organic Law.

It is alleged that from the total of 3,520 votes cast for Regional, Open and Local Level Government (LLG) elections, 1420 ballot papers cast for LLG votes were not initialled by the presiding officers thereby being rejected as informal votes by the Returning officer at the Counting. Therefore from the 2,527 votes cast at the election at Gotomi and counted, the result of the election would have been affected given the difference of 1,192 votes between the Petitioner and the First Respondent.

A total of 21 witnesses were called in the trial and 30 exhibits were received. The Petitioner called ten (10) witnesses, First Respondent 5 and the Second Respondent 6 witnesses. Observing some formality in the conduct of the trial, the Affidavits were tendered into evidence noting the objections raised by the respondents either on the basis of relevance, hearsay or prohibited evidence.

The following witnesses’ Affidavits in the Petitioner’s case were admitted into evidence and marked as exhibits:

NO.	WITNESS	DATE SWORN	EXHIBIT NO.
1	MATHIAS KARANI	26 – 08 - 02	P3
2.	MATHIAS KARANI	10 – 10 - 03	P4
2.	KAMAYALI WAYA	23 – 08 - 02	P5
3.	JOHN ENOPA	28 – 10 - 02	P9
4.	DANNY SISI	28 – 10 02	P10
5.	ARON MUFRI	25 – 10 – 02	P11
6.	ABRAHAM MUFRI	23 – 10 - 02	P12
7.	YAOPALO GUNUREI	25 – 10 – 02	P13
8.	JAMES SUWARY	21 – 08 - 02	P14
9.	JENSEN FITO	22 – 08 - 02	P16

The Petitioner Mr Karani deposed to two affidavits. The first in time was the affidavit of 26 August 2002 and the second affidavit was sworn 10 October 2003.

There was strong objection to the admissibility of the two affidavits by counsel for both the First and Second Respondents. I admitted both affidavits subject to the objections raised being noted for proper and due consideration. Both affidavits were therefore admitted into evidence and marked as exhibits "P3" and "P4" set out in the Table above.

I have since had the opportunity to thoroughly read and study both affidavits. The earlier affidavit exh. "P3" deposes to the facts as found by the witness in respect of the discrepancies he noted in the common roll since the declaration of the result of the election for Lufa Open Electorate and the steps he took. I find nothing wrong with paragraphs 1 and 2 of the affidavit and annexures A1-2 and B as they relate to what the witness saw prior to the elections began and what steps he took in relation to them.

However in respect of the remaining paragraphs from 3 onwards the evidence relates to examination of the common roll and cross-checking of voters against names in the common roll and the witness expressing his opinions based on hearsay. In a nutshell the evidence sought to be given in this affidavit is prohibited by section 214 of the Organic Law because any challenge to the state of the common or electoral roll is a challenge to the correctness of the common roll that is not allowed. The common roll is to be presumed to be correct for purposes of elections petitions and electoral returns.

In this regard where the balance of the affidavit is inquiring into the correctness of the roll I shall disallow which means that except for paragraphs 1 and 2, the entire affidavit of the petitioner is rejected.

The petitioner’s next affidavit (Exh. "P4") was challenged on the basis that it was not relevant to the proceedings by both 1st and 2nd Respondents. This affidavit relates to the resignation of witness Kohitete Kemeipa’s resignation as LLG Member for Kotomi Ward. It is claimed that he was not registered to vote and stand for elective public office in Lufa electorate but in Unggai/Bena electorate. For reasons explained in this judgment that evidence also has the same effect as inquiring into the correctness of the electoral roll and I will reject that evidence.

The effect of this ruling is that all evidence given by the Petitioner in respect of what he did after the elections upon becoming aware of the results of the counting in connection with Lufa Open Electorate in 2002 National Elections and the steps he took to take issue with the figures in the common roll with the aim of challenging the result of that election by relying on those inquiries he made or was making are inadmissible as they are prohibited by law under section 214 of the Organic Law. I therefore reject them.

This witness deposed to an affidavit on 23 August 2002 which was admitted into evidence and marked as exhibit "P5". He was a scrutineer for the petitioner who attended the New Market Polling Place on the day of polling 21 June 2002. He comes from Degi village, the same village as the Petitioner. He and another scrutineer were assaulted by unknown persons they believed to be First Respondent’s supporters on the road leading to Kotomi Primary School. The witness remained at the New Market Polling place while his friend, Jensen Fito proceeded to Kotomi Primary School where the other five teams were set up.

He said after the presiding officer had explained the voting procedures to the voters present, a man named Elson Sofame told him to remain in his position and not move around until after the polling was completed. He said he did so in an angry manner by pointing fingers at him.

He said polling commenced at 9:30am and concluded at 3:30pm. He said the polling team wanted to return to Goroka but a man called Bruce Sigoya stopped the polling officials from leaving Kotomi until the five other teams polling at the school had completed their polling.

He said they proceeded to the school where he saw voters moving from polling booths to polling booths repeatedly casting votes. He could identify four ladies who stood out. He said polling continued well beyond 6:30pm and completed around 8pm under the school generator lights upon their complaints. He said there were double-voting and even under-aged school children pushed to vote when a name was called.

He said young school age children were escorted in and votes were marked for them by the escorts.

This evidence was far too general and of no direct relevance to any specific ground pleaded.

This witness’ evidence was in relation to the population of Kotomi Ward according to the record kept by the National Statistics Office following 2000 National Census conducted. I rejected his affidavit when it became apparent to me by his own testimony that he simply signed it in the absence of a Commissioner for Oaths. Affidavits intended to be used in any court proceedings must be sworn before a Commissioner for Oaths in accordance with section 16 of Oaths Affirmations and Statutory Declarations Act 1962 (consolidated in 2000). Anyone who relies on an affidavit material must have that evidence properly authenticated before or witnessed by a Commissioner for Oaths. The reason for this is simple. Commissioners for Oath can be liable for criminal prosecution under section 19 of the Act if they witness or authenticate as true any false statement in an affidavit.

However, I allowed the witness instead to give oral evidence as an expert on his field, being the National Statistician of Papua New Guinea. Two documents now marked as Exhibits "P7" and "P8" were tendered into evidence as part of the official records of his office pertinent to the subject matter before the court. These documents are in the Table containing list of exhibits and these records illustrate, inter alia, the following as at 2000 for Kotomi Ward 27:

Age group	total	males	females	Sex ratio	Citizens (in %)
total	3,012	1,515	1,497	101.2	100
0 - 4	410	208	202	103	100
5 – 9	362	191	171	111.7	100
10 – 19	655	340	315	107.9	100
20 – 29	545	240	305	78.7	100
30 - 39	423	218	205	106.3	100
40 – 49	243	119	124	96.0	100
50 – 59	234	118	116	101.7	100
60+	140	81	59	137.3	100
Citizens deemed (sic) 18+	1,691	830	861	96.4	..

Census Geographical Area	households	persons	males	females
27. Kotomi Ward	877	3,012	1,515	1,497
007.Fimoa	82	297	157	140
022. Haga No.1	180	652	337	315
047. Liloka	64	241	117	124
060. Nupamana	154	531	253	278
064. Segeya	141	496	241	254
065. Silupa	118	375	187	188
067. Kipolagana	125	387	205	182
401. School and Health Centre	13	34	18	16

Having now perused this evidence and its significance in the totality of this case, it has now become clear that this evidence facilitated the Petitioner’s anxiety in disagreeing with the common roll as far as enrolments for Kotomi Ward is concerned, hence this petition. This evidence was erroneously accepted in the first place as authorities discussed show that it ought to have been rejected as contradicting section 214 of the Organic Law. Any comparative analysis made of figures in the common roll with other census records for purposes of Part XVIII of the Organic Law is questioning the correctness of the roll which is expressly prohibited by law. The entire evidence given and the documents exhibited in this trial in furtherance of this inquiry were inappropriately received in this proceeding and are hereby rejected.

This man is a Pastor with the Faith fellowship Church in Lufa and a member of Team 61 that was polling at Kotomi School. He gave evidence of polling on 21 June 2002 and he was assigned to guard the ballot boxes. He saw one Bruce Sigoya a Scrutineer of the First Respondent telling the presiding officer and his team members to remain calm and proceed with polling as directed as this was Yawa Silupa’s base and he said they virtually took control of the polling booth. He said the presiding officer was powerless to do anything as the voters had their own way. The situation was made worse without a single police presence in that polling booth. Other evidence from other witnesses state that there were 2 to 3 policemen for the entire five poling booths moving about but not harmed to maintain order.

He saw four women from Kiporagana voted twice by changing their dressing style but he could not be mistaken about their faces. He also saw elders pushing young children to go in and vote.

He saw Team 59 still polling after 6pm although his Team had concluded about that time. Team 59 continued as there were scores of people still waiting to vote and polling continued till 8pm when the presiding officer closed the booth and told voters to go away and return the next day for polling to continue upon noticing the presence of the Petitioner’s scrutineers. This is the only evidence suggesting that there was polling the following day when there was no direct evidence of polling on day two was adduced.

This was a material witness for the Petitioner and similar evidence from other polling booths was what the Petitioner needed to leap out of the monotony of superficially orbiting the surface of the scene where he is alleging so many illegal activities had taken place during polling at Kotomi.

Otherwise this evidence in no way implicates the First Respondent in any significant and material way for purpose of section 215 because if it is the actions of the agents or officers of the First Respondent that is relied upon to invalidate the result of this election, this evidence must be able to prove that ‘the result of the election was likely to be affected’. I ask myself this question, is the result of the election likely to be affected if I am satisfied that four women from Kiporagana double-voted. Can I declare an election result invalid on such evidence? Is such a result just and fair for a candidate who won the election by an overwhelming majority to be declared not duly elected. I do not think so. That evidence is no where near the mark for such an exercise to be undertaken.

I accepted this witness’s affidavit into evidence (Exh "P10") despite objection on the basis that it was questioning the correctness of the common roll hence contrary to section 214 of the Organic Law. Having now studied the affidavit I am of the firm view that this affidavit is inadmissible as is the evidence given orally in connection with the compilation of this affidavit. The exercise undertaken by this witness is clearly an exercise of questioning the credibility of the common roll which is not permissible in this proceeding under Part XVIII of the Organic Law. His evidence is rejected in its entirety.

This witness swore an affidavit that was tendered into evidence despite objection on the basis of relevance. That affidavit is marked exh. "P11". I have since read this affidavit thoroughly and am now of the firm view that that evidence as to what happened at the counting is not in connection with any of the substantive complaints of illegal practices at the polling that the First Respondents, his servants and agents are accused of being guilty of. It is evidence that is tied in with allegations of ineligible voters from Unggai-Bena and Henganofi going to Kotomi to cast their votes and there has been no evidence at all led of that. It was on the basis of that allegation the complaint was raised that 1420 informal votes cast for the LLG elections in Kotomi must have bearing on the voting in the National election. Otherwise there is reasonable explanation from John Tau the presiding officer for one of the Teams in Kotomi who admitted an error on his part in not signing some 800 LLG ballot papers.

This complaint was also raised in the overall context of the suspected inflation of the voter-population in Kotomi Ward which I have found that this investigation is prohibited by law under section 214 OLNLLGE.

I refer to this evidence elsewhere in this judgment and am now of firm view that this evidence is irrelevant for purpose of this proceeding and I reject it.

This witness gave much the same evidence as Aron Mufri and for the same reasons Aron Mufri’s evidence was rejected, I do so likewise with his as well.

The witness’s evidence also concerned the 1420 informal votes for the LLG elections for Kotomi ward which I have discussed elsewhere in this judgment and also as expressed above I find to be irrelevant for purpose of this proceeding and I reject both his affidavit and his oral evidence on this aspect.

I refer elsewhere in this judgment to this witness’s testimony. I admitted his affidavit despite objection. It is now clearly by established authority that the nature of evidence that his affidavit deposed to and presented orally as well was clearly evidence contradicting the common roll hence prohibited by the Organic Law under section 214, a similar situation as in the case of re Darlinghurst Petition[4] in the State of New South Wales where the petitioner attempted to adduce evidence by affidavit of a former resident of an electorate to show that his name was erroneously appearing on that roll when he had already removed from that location. Under the similar provision of the electoral law to section 214, the tribunal rejected the evidence by virtue of that statutory injunction against the court inquiring into the correctness of the roll.

This affidavit and the evidence given by the witness is rejected in its entirety.

This witness gave evidence similar to Kamayali Waya. Both were scrutineers for the Petitioner assigned to the polling at Kotomi Ward by their Campaign Manager.

He is married to a woman from Sulupi haus-lain from Kotomi Ward and he had no fear of his in-laws. He was the Scrutineer in one of the five polling teams in Kotomi School. He does not say that he moved around and saw what was happening in the other four polling booths as voting was progressing.

Although he said they were assaulted and robbed on the way up to Kotomi by some people from Haga village, he said his in-laws looked after him well and gave him food and drinks during the polling at the school.

He gave the same evidence of polling booths established about 40 meters apart from each other and voters moving from one booth to another double-voting. He also gave evidence of one Maggie Kurun who he said was born in 1985 casting her vote when the common roll has her name with place of birth in 1983. He was clearly contradicted by that evidence which is more reliable. In any event that is questioning the correctness of the common roll and that evidence is rejected.

He too said that polling went into the night and continued under lights from the school generator started by the school head master. This evidence was not verified if the headmaster was around.

The evidence then goes on about being thrown out of a vehicle they sought lift to travel to Goroka by the First Respondent’s supporters. On their own this evidence is simply superficial and no making much impact in advancing the Petitioner’s case in any material and significant way for purpose of section 215 of the Organic Law.

The witness is the Sitting Member for Lufa Open Electorate in the Eastern Highlands Province. He gave oral evidence and denied there being any illegal practices. He said he went to the polling booth at Kotomi Community School with the rest of his haus-lain members and cast his vote and returned home. He did not stay around to watch the polling.

The witness admitted going to Ifafi mountain polling place early at 6:30am on the morning of 21st June 2004 and announcing to the polling officials and voters alike to move down to Kotomi Community School where it was more central for all polling to take place there in the event of weather turning quite bad.

This witness is a classical example of Lord Denning’s[5] hypothesis of a man who had a house in the country and a flat in the city and he lived in them and regarded them both as his homes. The law recognized him as having two residences in both places where he moved regularly and constantly between them for business and pleasure. It is the same as modern Papua New Guineans today who maintain one village house in the electorates of their birth place and another house in town or city where they live and work but they move regularly between these two for business or pleasure at their choosing. For residential qualification purposes they are qualified in both electorates[6].

Kohitete Kemeipa is one such person from Nagamito village Ward 4 in the Lower Bena Constituency Ungai/Bena Electorate who has a home in Nagamito where his first wife lives. But he also maintains another home at Nupamana village in Gotomi area in the Lufa Open Electorate where he runs an electrical contracting business. He originally comes from Ungai/Bena, married with two wives and has 8 children.

He was a former Speaker of the Eastern Highlands Provincial Assembly while a Member for Lower Bena Constituency between 1978 and 1986.

This witness was heavily implicated as the First Respondent’s staunch supporter who instigated and arranged voters from Ungai/Bena and transported them to Kotomi to vote for the First Respondent. But there was no evidence actually led of him transporting truck-loads of people into Gotomi School either from Henganofi or Unggai/Bena Electorates to vote in Lufa.

The most relevant evidence he gave was the description of the voting procedure employed at the polling booth where the presiding officer called out the names and voters join the queue, their names are checked and crossed and fingers marked with indelible ink and then given three ballot papers (one for LLG, one for Open and one for Regional) and the voters proceed to polling booth where they place their marks on the candidates of choice and proceed to the ballot boxes where LLG votes are placed in one box and both the Open and Regional votes are placed in the National ballot box.

This witness had very high praise for the orderly and smooth manner in which polling proceeded in the booth and how the officials and the people behaved throughout the polling.

He was the winner as LLG member for Kotomi Ward in that election, the seat he relinquished by resignation not long after for personal reasons to concentrate on his business while the Petitioner claims that he resigned because he was not registered in Kotomi Ward, hence, was not qualified to stand for election for that Ward. That is not a matter for this court to deal with. This evidence was led by way of back-door approach to connecting the First Respondent’s win to this witness arranging ineligible voters from Henganofi and Unggai/Bena electorates by transporting them in truck loads to vote at Gotomi so as to secure the First Respondent’s win as well as the witness’s win in the LLG election.

There was nothing of real relevance in this witness’s testimony. Cross-examination of the witness failed to advance the petitioner’s case in any meaningful and material way. The questions and answers given were centred on peripheral matters that did nothing to establish the case for the Petitioner.

Nonetheless I am impressed with his evidence and I have been given no reason to disbelieve him.

This witness had his name appeared in Forapi Ward although he voted in Kotomi Ward. His explanation was that he originally belonged to Kotomi but the clan moved to Forapi as the result of tribal conflict and they fled over then years ago. However situation had returned to normal and he has been back in his original place of birth. This was the only relevance of this witness’s evidence in which he was responding to the Petitioner’s allegation of him being registered in another Ward. This evidence per se is inadmissible as it is not permitted by section 214 OLNLLGE as it is questioning the correctness of the common roll.

In any event an elector who resides in one Ward in the same electorate in my view is entitled to vote for a candidate of his choice for the National election in another Ward as long as he can prove his enrolment in that other Ward where his name is registered. The whole purpose of confining electors of an electorate in their respective boxes or cubicles of Wards and Constituencies is to minimize opportunities of double-voting. But it is not correct to go into any poll on the premise that elections are dirty business where there is much graft and corruption and those who get into power are those who possess the biggest might, wealth and influence and are able to buy support with their connections in all the right places.

This witness gave evidence of going to the New Market polling booth where he cast his vote. He comes from Kiporagana village who polled at the New market. He denied those entire allegation made about him threatening a Scrutineer of the Petitioner at New market. He said polling went smoothly and he remained there until polling ended and he went up to the school where polling was continuing. He said there were two policemen at the polling booth.

This witness was a Scrutineer of the First Respondent who was accused of intimidating two of the Petitioner’s scrutineers and polling officials. He denied these allegations about the intimidations and said polling proceeded calmly.

I was not quite impressed by this witness’s evidence because he would not even give an indication as to the number of voters queuing up in the five polling booths at Kotomi Community School that day. His demeanour was such that he was not being entirely truthful. But that does not in any assist the petitioner at all in his petition.

I am not convinced that many witnesses who gave evidence told the honest truth about the voting and polling that day at Kotomi Ward. But that is as far as I conclude on the demeanour of witnesses called by the respective parties.

The Second Respondent also called evidence and the following affidavits were tendered and admitted into evidence, one was objected to by First Respondent but admitted into evidence, and marked as exhibits:

NO	WITNESS	DATE SWORN	EXHIBIT NO.
1	Robert Naiyoba	17 – 11 - 02	EC2
2	John Tau	17 – 11 - 02	EC12
3	Tamana Yonggarong	17 – 11 - 02	EC13
4	Tarcicius Tamut	17 – 11 - 02	EC14
5	Kuvi Lele	17 – 11 - 02	EC15
6	Banlang Gabriel	undated	EC16

The evidence given by witnesses in the Second Respondent’s case can be summarized as follows:

Mr Naiyoba was the Returning Officer for Lufa Open Electorate and his evidence in summary is that:

- the polling in Kotomi Ward 27 went smoothly according to the report he received from the polling teams who conducted polling in Kotomi as he received no adverse reports after the polling

- the number of ballot papers given to the teams for Kotomi are as stated in the record of distribution of ballot papers – see Exh "EC4"

- he denies allegations of double voting or extension of polling time to 8pm as he never received such request and he never authorized any

- he denied allegations of outsides transported to Gotomi to vote from the neighbouring electorates of Unggai Bena and Henganofi as he did not receive any such complaints

- he admits to 1420 ballot papers for LLG elections being declared informal at the counting because one of his presiding officers, John Tau, omitted signing the ballot papers through misunderstanding as he subsequently reported after the counting.

John Tau was the presiding officer for Team 60 which conducted polling at Gotomi Community School for Haga village. He denied allegations of illegal practices such as double voting, under age voters casting votes, etc. He said polling was smooth and concluded in good light and he still had 35 ballot papers unmarked to be returned. But he admitted however that he did not initial some 800 ballot papers cast ion the election for the LLG votes because he was unsure. He said in answer to cross-examination that he had extensive experience in conducting elections but with LLG elections running simultaneously with National Elections was the first of its kind and he was confused with the 1997 election where there was no requirement to sign ballot papers for LLG votes.

Whatever the case, there is a part explanation for the 1420 LLG votes declared informal at the counting. The other 600 could have been from any of the other five teams which includes New Market polling booth also in Kotomi.

This witness was the presiding officer for Team 62 which polled at Kotomi Community School. Originally they were scheduled to poll at Kotomi Aid Post which according to the evidence is about one kilometre away from the school. But he said he discussed with the elders of moving the polling booth to the school which was more central and besides the location at the school was not appropriate, it was sloppy and that the weather was not quite good and the school provided adequate shelter for everyone. He denied any foul play and the allegations raised in the petition.

This witness was the presiding officer for Team 61 and he conducted polling at Kotomi Community School for Minemineto and Nupamana villages. His evidence is basically the same as far as the allegations of illegal practices are concerned. At paragraph 7 of his affidavit he deposes:

"7. At the polling, I did not notice any of the following illegal practices taking place:

He concluded that all ballot boxes were transported to Goroka Police Station under tight police security at the close of polling.

This witness gave virtually the same evidence like his comrades. He was the presiding officer for Team 63 and he was responsible for Fima village that polled at Kotomi Community School.

Kuvi Lele was the presiding officer for Team 59 that was scheduled to poll at Ifafi mountain. By some agreement prior to the polling day polling designated for that place was moved to Kotomi Community School. He did not know of this until the morning of the polling day when he saw the voters moving towards Kotomi School which is also within close proximity of Ifafi mountain and some young men told him of the change.

He had no choice but to pack and move to the school with his team. He saw the First Respondent go up to Ifafi mountain and announced to the voters to move to the school and the explained to him of what had been agreed to earlier by the people.

This team is the one that polled the second day at the School because of the late start they were unable to complete polling on 21 June 2002 so they return as there were more people in the roll who were waiting to vote.

There is some explanation of polling continuing to 8pm from this witness that there was no polling except that he was answering questions from voters from the voters about that time but returned the next day and concluded the polling.

Otherwise he also says that there were no threats, no double voting and no under age voting.

No.	Document	Exhibit No.
1	Lufa Open Electorate Common Roll	EC1(a), EC1(b) & EC1(c)
2	Enrolment Record Form	P1
3	Polling Schedule	P2
4	Community Profile (an excerpt from National Statistical Office) – Kotomi Ward	P8
5	Census Geographical Area ( National Statistical Office )	P7
6.	Declaration and Appointment of Scrutineer	P15
7	Electoral Allowance Sheet	EC3
8	Distribution of Ballot Papers	EC4
9.	Presiding Officers Returns of Voters and Ballot Paper for Team 59 (Ifafi mountain)	EC5
10.	Presiding Officers Returns of Voters and Ballot Paper for Team 60 (Gotomi Primary School)	EC6
11.	Presiding Officers Returns of Voters and Ballot Paper for Team 61 (Gotomi Primary School)	EC7
12.	Presiding Officers Returns of Voters and Ballot Paper for Team 62 (Kotomi Aid Post)	EC8
13.	Presiding Officers Returns of Voters and Ballot Paper for Team 63 (Gotomi)	EC9
14.	Presiding Officers Returns of Voters and Ballot Paper for Team 64 (Kotomi New Market)	EC10

After all the evidence is led, the primary issue remains as to whether there were really 3,786 eligible voters at Kotomi Ward 27 and all of them actually voted at the elections on 21 January 2002 at Kotomi Community School? If so, where did 43 additional voters come from which bring the total tally of votes cast in Kotomi Ward 27 to 3,829 votes?

Ultimately the issue that is going to determine whether the petition succeeds or fails is a jurisdictional one: Was this petition validly grounded in questioning the correctness of the Roll?

The following grounds or allegations are incompetent for the reasons discussed in respect of each of them:

A ground raising serious allegations of impropriety or of committing a criminal offence must be capable of being read and understood in its entirety and as a whole. That is why section 210 of the Organic Law in contemplation of this requirement prescribed in no uncertain terms that no proceedings shall be had on a petition unless it complies with sections 208 and 209.

Allegation 1 or ground 7 raises a very general allegation that the First Respondent together with his servants and or agents after the commencement of polling in the Eastern Highlands Province on 15th June 2002 and on 21st June 2002 for the Lufa Open Electorate committed several acts of undue influence and illegal practices with the knowledge and authority of the First Respondent against registered or eligible voters of the First Respondent and with the intention to interfere unlawfully in the free voting in the election by voters. In doing so it is alleged that the First Respondent contravened sections 50, 126(3), 26, 43, 52, 113, 115, 130, 131, 133, 134 and 215 of the Organic Law on NLLGE and sections 99, 100, 101, 105, 106 and 116 of the Criminal Code. Other grounds are pleaded in similar manner or identical fashion.

There are several fundamental defects in this ground. Firstly, it is not stating facts as to why it is alleged that the First Respondent committed acts of undue influence or illegal practice. Section 208(a) provides:

The Supreme Court said in Delba Biri v Ninkama [1982] PNGLR 342 said at p.345:

"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."

Secondly, the structure of the ground itself is bad. While it is raising undue influence it is not specific as to whose and what acts are alleged as amounting to undue influence. It is confusing and incomprehensible for purpose of section 215 of the Organic Law. Every ground in a petition that is relied upon allegation of bribery or undue influence it must clearly specify whose and what acts are alleged to amount to bribery or undue influence because there are different elements that are necessary of proof under section 215. They cannot be pleaded in the alternative. It is either the First Respondent in person or it was through the acts of his servants or agents. If it was through the acts of his servants or agents, then it must be pleaded that it was with the knowledge or authority of the First Respondent.

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

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

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

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

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

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

In re Kavieng Open Electorate - Ben Micah v Ian Ling Stuckey [1998] Unreported National Court Judgment – N1790, circumstances were similar as far as pleading relevant facts are concerned. The petitioner’s petition went to trial on few remaining grounds after most of the grounds were struck out on competency grounds. After evidence had been led on the remaining grounds, it was discovered that none of the evidence could substantiate the allegations unless the petition was amended which is not allowed by law. So the ground was defective all along but the court was not to know this until the trial and the evidence or lack of it could point this out. And this observation was made by Woods, J (as he then was):

"The remaining allegations are that a named person ‘acting with the knowledge and authority of ‘the First Respondent gave certain named persons money or other items, with the intention of inducing’ them to vote for the First Respondent. These allegations are therefore not allegations of bribery against the First Respondent, they are alleging that other persons committed bribery and undue influence with the knowledge and authority of the candidate. It is not alleged in the wording of the clause that the candidate procured or counselled the bribery or undue influence, just that he knew. So what it is alleged is the offence. It is noted that knowledge of an illegal practice or offence is referred to in s.204 of the organic Law but that section only relates to offences in Part XVII of the Organic Law and that part does not include bribery and undue influence. This seems to be a similar situation as I found in 1989 in the case of Palme v Mel and Electoral Commission, unreported N808. And as I found in that case it would appear that by drafting the clause this way the petitioner is trying to make the respondent absolutely liable for the acts of what is suggested are his agents. Whilst he may be intending to prove a nexus when he brings the evidence, he has not alleged it properly. He should have either alleged a nexus by procuring or counselling or have alleged specific acts of bribery and undue influence by others which are likely to have affected the results; vide s.215(3). As noted this analysis of how bribery and undue influence by candidates should be alleged has been around for some time. So following on this analysis it would appear that these allegations are not grounded sufficiently into acts of the candidate, nor are they presented such that the results of the elections was likely to have been affected, and therefore they would appear to be superfluous to hearing of the petition. The petitioner cannot come during the trial and proceed to attempt to allege actual procuring or counselling so as to make the allegation into one of a direct criminal act by the First Respondent without having alleged it properly in the petition.! (Emphasis is mine)

I had to refer to His Honour’s reasons for striking out those nine (9) other grounds in the petition because as it turned out in this trial when the evidence was compiled and presented before me, all these remaining grounds in substance were identical to the ones Woods J had them struck out. They cleverly escaped detection at that preliminary stage because of the way they were pleaded, ie. by naming the First Respondent in person as committing the bribe which was quite in order. The only exception out of these five grounds was ground 5(b) that unfortunately could not stand on legal grounds unconnected with pleading nor the facts. Grounds 5(g),(h) and (o) are replicas of those dismissed grounds but in the opposite order. In whatever order they come in my view, they suffer the same fate as those that have been dismissed at the preliminary conference. I entirely agree with Woods J that if the petitioner wishes to have the First Respondent criminally liable for the offence of bribery or undue influence through other persons, he must specifically and properly allege the facts as ‘procuring or counseling’ by invoking s.7 of the Criminal Code. One cannot be so unrealistic and deny the fact that bribery and undue influence do not take place during elections. Large sums of money and goods exchange hands from candidates through their committee-men to their ultimate recipients. The effect of these donations on the recipients are the same as if the candidates themselves have made those payments physically. The end result of that generosity is reflected ultimately on the ballot count. But the Organic Law has set a very high standard from drafting of petitions to actually proving the allegations in Court. All allegations must be properly and clearly pleaded, setting out all relevant facts. There can be no changes after 40 days of declaration of the result to the petition. This means that if the petition alleges that A bribed B to vote for him by giving him a cone of ice-cream when in fact it was C who bribed B for A, regardless of how good and solid the evidence is, the charge must fall because the Organic Law does not allow change or amendment. This position is quite clearly stated in Delba Biri v Bill Ninkama [1982] PNGLR, 342 where the Supreme Court held that ‘the National Court ... shall not allow and does not have power to allow an amendment of a petition after the period of two months (40 days in the new Organic Law) after the declaration of the result of the election in accordance with s.176(1)(a) of the Organic Law on National Elections.’ In a criminal trial proper the Court has power to order amendment of an information and to charge a defendant with the offence supported by the evidence or to return an alternative verdict but no so in bribery cases under the Organic Law.

In my view having examined the evidence tendered in support of the remaining grounds and bearing in mind the grounds alleged, this whole petition must be determined on the strict requirements and in compliance of the Organic Law. Even if I were to determine on the evidence presented so far as to whether or not a prima facie case has been made out against the First Respondent, the evidence is quite spurious and unconvincing and credibility of several key witnesses is under serious questions. Who then can the Court believe?

In this upshot, this petition faces threshold problems. Problems that the trial judge who had earlier dealt with those preliminary issues could not have possibly detected or foreseen because the grounds as pleaded were quite in order. But the anomalies only surfaced as evidentiary materials were tendered in this trial to substantiate those grounds. Setting out the facts in accordance with the requirements of the Organic Law lays the foundation upon which the evidence tendered can comfortably dwell in. If the foundation does not lay that basis, the petition is structurally defective and unsafe. No amount of evidence can remedy or repair a structural defect. Unlike in criminal trials where charges can be amended with leave of the Court in accordance with the prescribed rules of practice taking into account fairness and justice to the defendant, the rules do not permit such late amendments under the Organic Law. And the reason simply is that an election petition is a serious matter as this Court and the Supreme Court have repeatedly stated."

I adopt and apply what I said in that case to the case before me. The only difference with this case is that the pleading itself was clearly bad enough anyway but I can’t comprehend it being allowed to remain. The final bit of that ground refers to ‘undue influence and illegal practices with the knowledge or authority of the First Respondent against the registered or eligible voters of the First Respondent". This statement is legally void because no candidate or individual for that matter has any proprietary rights over electors or eligible voters in any election. In the overall context of the ground it is not coherent and not even comprehensible.

Undue influence is a criminal offence under section 102 and to prove that offence the standard is proof beyond reasonable doubt. It was held in Neville Bourne v Manase Voeto [1977] PNGLR 298 that in an election petition where the ground relied upon is based on bribery and undue influence, the standard of proof is that close to the criminal standard of proof beyond reasonable doubt.

What is highlighted in this ground is repeated in others. All these grounds suffer the same defects. The petitioner’s worst set-back is the failure to properly set out the facts in line or in accordance with the elements of the relevant electoral offence allegedly committed as I have already stated elsewhere in this judgment. For example, every case of illegal practice must be properly pleaded so that whoever is accused of that offence has the opportunity to refute that or defend himself. What has been expressed in the Port Moresby South Electorate case of Raymond Agonia v Albert Karo and Electoral Commission [1992] PNGLR 462 is most appropriate in this case where Sheehan, J ( as he then was) said at pp. 466-467:

"Any aggrieved person has the right to bring a petition challenging an election for breaches of the electoral process. But an election petition does not inaugurate some general inquiry into the process of an election to see if any offences or omissions have occurred. A Court of Disputed Returns is not an open forum for unspecified complaints where, after all parties have aired their dissatisfaction, the Court sifts the complaints and reports whether, on balance, the election can be considered satisfactory or whether a new election should be held. The Court of Disputed Returns has the duty of hearing and determining only those petitions which challenge an election by definite specific charges that, if proved, will result in an election being set aside.

The Organic Law and the decisions explaining and supporting it, make it clear that such challenges must be specific in defining the breaches alleged. The Supreme Court in Biri v Ninkama [1982] PNGLR 342 at p 345 states that the Organic Law on National Elections:

"... has clearly expressed its intention that a petition must strictly comply with s 208. It is not difficulty to see why. An election petition is not an ordinary cause ... it is a very serious thing. It is basic and fundamental that elections are decided by the voters who have a free and fair opportunity of electing the candidate that the majority 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."

The Supreme Court was asked in a special reference under section 18 of the Constitution on its advice and opinion on what constitutes ‘facts’ for purposes of section 208(a) of the Organic Law in SCR. No. 2 of 1988 – Sir Barry Holloway v Aita Ivarato and the Electoral Commissioner [1988] PNGLR 99 and Kapi, DCJ (as he then was) addressed the question in his judgment as follows at pp.100-101:

The Australian legislation is very similar to the Organic Law. In particular s 185(a) of the Commonwealth Electoral Act (Cth) 1918 is in exactly the same terms as s 208(a) of the Organic Law. The High Court considered the provisions of s 185(a) in the case of Re Berrill’s Petition and Boothby (SA) (1978) 19 ALR 254. The High Court in dealing with s 185(a) of the Commonwealth Electoral Act said (at 255-256):

"The question therefore in this case is whether the petition does set out the facts relied on to invalidate the election. The petitioner has submitted that it is enough that she has alleged that there have been substantial breaches of a number of sections of the Electoral Act. That, she says, is the fact upon which she relies to invalidate the election. But upon proper analysis, what she has alleged are conclusions of law. She has not stated the facts from which those conclusions may be drawn."

This case was followed by Bredmeyer J in Siaguru v Unagi and the Electoral Commissioner [1987] PNGLR 372.

The English position is also discussed by Bredmeyer J in the abovenamed case. The English position may be summarised in the rules set out in the judgment of Bredmeyer J (at 374):

"the petition must state ‘the grounds on which the relief is sought, setting out with sufficient particularity the facts relied on but not the evidence by which they are to be proved.’ "

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. It actual practice, it may require a longer time to collect, gather, or prepare evidence for trial. In some cases, it would not be possible to collect all the evidence within the two months limitation period.

It is also possible for a party to apply to the court at the hearing of a petition for inspection of a roll which has been used in connection with an election in order to prove a ground upon which an election may be invalidated. He does not have to plead this evidence under s 208(a) of the Organic Law. In fact he could not plead this evidence because he would have no way of knowing of it until an application is made to the court for an order for an inspection under s 212(1)(c) of the Organic Law. This supports the view that it is not necessary to plead this evidence under s 208(a) of the Organic Law. 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. Bredmeyer J came to the same conclusion in Siaguru v Unagi and the Electoral Commissioner.

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."

The remaining grounds that fail to plead sufficient facts for purpose of section 208(a), in particular those I have alluded to above, they are incompetent for the reasons discussed above and must be dismissed.

The following grounds are unsustainable in law in that reliance upon them to ground a petition contravenes section 214 of the Organic Law. There are about five grounds that are identified in this category, namely Allegations 2,4,8,9 and 13 or grounds 7.1, 7.3, 8, 9A Case 2 and 12(c) – (e).

Allegation 2 or ground 7.1 in the petition is the real crux of the issue in this trial. According to the 2000 National Census records as adduced in evidence through the National Statistician Nick Suvulo, there are 3,572 people (males and females including children) in Kotomi Ward 27 which is highlighted in the Table illustrated in this judgment. This is the total population of that Ward. In the Lufa Open Electorate Common Roll used in the 2002 National Elections, 3,854 people were enrolled as eligible voters for Kotomi Ward 27 alone.

And the same concern is raised in Allegation 4 or ground 7.3 where the petitioner compares the figures in the 2002 Common Roll with the National Census figures and concludes that the Common Roll is inflated with enrolment of under aged school students, deceased persons, ghost names and persons already removed from the Ward when the correct eligible voter population, he estimates a generous number of 2,500 at the most.

It is trite law that petitions that are grounded on the state of the Roll following an election cannot and must not be allowed as the basis for disputing the validity of an election or the return of a candidate at the election as such inquiry does not fall under Part XVIII of the Organic Law On National and Local Level Government Elections. Section 214 provides:

The National Court shall inquire whether or not the petition is duly signed, and so far as Rolls and voting are concerned may inquire into the identity of persons and whether their votes were improperly admitted or rejected, assuming the Roll to be correct, but the Court shall not inquire into the correctness of a Roll."(My emphasis)

A person is entitled to ask whether a particular person is enrolled as an elector in a particular electorate to vote in an election in that electorate. In other words if there is any doubt of a person having registered in the Common Roll of an electorate, it is permissible to enquire into his enrolment in that particular electorate. Inquiry is only limited to this and not beyond that questions the correctness of the roll. See John Wemin Mili V Simon Philip Gaima & Electoral Commission [1997] N1618 where Woods J allowed a particular ground to proceed to trial in which the petitioner raised allegations of double voting as the result of double-listing of names in the common roll. His Honour said at p.3:

"Whilst the Organic Law states in Section 214 that the National Court shall not inquire into the correctness of the Common Roll this allegation does not ask that. This allegation gives facts of double listing and double voting by people whose names are repeated on the Common Roll. The allegation is that the electoral officials allowed certain specified persons to vote twice because their names were repeated on the Common Roll. This is not an inquiry into the correctness of the roll, it is simply saying that certain people took advantage of that double listing and voted twice."

His Honour was of the view that there were sufficient facts pleaded for the petition to go to trial on the ground as pleaded and whether the evidence subsequently produced supported the allegation is a matter for the trial and the risk that the petitioner must take.

However in Norman Walter Fernandez v Philip Taku & Electoral Commission [1997] – N1616 where the petitioner vaguely raised complaints of names being out of order in the common roll and appeared to be questioning the correctness of the common roll, Woods J struck out the petition as prohibited by section 214. In Komane Assano Wasege v Mathias Karani [1997] N1679 question turned on whether certain named persons whose names were said to have been bribed by the First Respondent were electors in Lufa Open Electorate and had their names in that electorate. There was assertion by counsel for the petitioner that the names were in the common roll whereas affidavit evidence filed on behalf of the First Respondent refuted that. Sawong J held that this was inquiring into the correctness of common roll that was prohibited by section 214 and the court could not inquire into that and rejected the ground.

Section 214 OLNLLGE is worded in identical terms to Section 190 of the Australian Commonwealth Electoral Act 1918 as amended. I cite two old cases on this issue decided by the High Court of Australia.

The first case is Perkins –v- Cusack [1930] HCA 3; (1929) 43 CLR 70 where the petition prayed for declaration that the respondent was not duly elected as member representing an electorate on the ground that a large number of persons were enrolled as electors in that electorate and voted in that election who were not entitled to be on the electoral roll or to vote in that electorate. There was suggestion that the real place of living of these persons was not within the electorate, certainly not so within three months preceding polling day in that electorate. The High Court rejected the evidence saying that section 190 of the Commonwealth Electoral Act did not allow evidence being called to show that these persons really did not reside in the electorate in question because that evidence would challenge the correctness of the roll and such inquiry is forbidden to the court by the statute.

This case was subsequently cited with approval in the case of In re Berrill’s Petition [1976] HCA 50; (1976) 134 CLR 470 also referred to by the Chief Justice in Holloway v Ivarato (supra) in the context of section 185(a) of the Commonwealth Electoral Act 1918 whose corresponding provision in our Organic Law is section 208(a).

The Petitioner in Berrill’s case alleged illegal practice on the part of the electoral registrar who removed her name from the roll of the electorate in which she and others resided. She prayed for the return of the election to be invalidated because she did not vote for the candidate returned as she was prohibited from voting by her name not being on the roll. The High Court of Australia dismissed her petition. Gibbs, J said at p. 471:

"The alleged illegal practices upon which the petitioner relies to invalidate the election were such that, if they occurred, they resulted in the wrongful removal of names from the electoral rolls. There alleged effect was that the rolls used at the elections were incorrect. In other words, although the petitioner did not acknowledge the fact, her petition challenges the correctness of the rolls used at the election. But Section 190 of the Commonwealth Electoral Act 1918, as amended, clearly forbids the Court to inquire into the correctness of any roll. If the name of a voter is wrongly removed from the roll the voter has a remedy, but wrongful removal cannot form the foundation of a petition under Pt. XVIII of the Commonwealth Electoral Act."

"...Then follows an allegation that what the petitioner describes as "the prohibition from voting or the otherwise absence of persons from voting in the said election due to their non-enrolment" would have a variety of effects, which she specifies, upon those elections. The petitioner claims that the alleged removal of names is an illegal practice within s.189 (3) of the Act and goes on to allege that the election of the successful Senate candidates should be declared void.

Essentially, then, the petition complains of the state of the electoral rolls upon which the last Senate election in South Australia was conducted. This remained the substance albeit unacknowledged, of the petitioner's complaint when the matter came before this Court sitting as the Court of Disputed Returns.

The Solicitor-General's submission is, I think, well founded. Section 190 of the Act is as follows:

"190. The Court shall inquire whether or not the petition is duly signed, and so far as Rolls and voting are concerned may inquire into the identity of persons, and whether their votes were improperly admitted or rejected, assuming the Roll to be correct, but the Court shall not inquire into the correctness of any Roll."

It clearly precludes the Court of Disputed Returns from entering upon any inquiry into the correctness of any electoral roll and it is exclusively upon the alleged incorrectness of such rolls in the State of South Australia that the present petition is founded. It follows that the Court has no jurisdiction to entertain the petition; the petition is misconceived and must be dismissed in whole in exercise of the power conferred by s. 189 (1) (vii)of the Act.

That this must be its fate is clear enough from the terms of the petition and from the petitioner's argument. The petitioner appeared in person and in the course of her submissions it plainly appeared that the form taken by her petition did truly reflect the substance of her contentions. The terms of s.190 are so clear as to require no elucidation by reference to authority, but if authority be needed it is not wanting. In Perkins v. Cusack [1930] HCA 3; (1929) 43 CLR 70 Starke J., sitting as the Court of Disputed Returns, was concerned with submissions that in a particular electorate votes were cast by persons who were, but should not have been, on the relevant roll. It was their presence on the roll rather than, as here, their absence from it that was objected to but the views expressed by his Honour are equally applicable to either case.

Section 190 was in its present form and his Honour rejected evidence sought to be tendered and bearing upon the correctness of enrolment; he did so because "that evidence would challenge the correctness of the Roll, and such an inquiry is forbidden to this Court by the statute".

In essence what Berrill’s case is saying is that if a voter’s name is in a roll that should not be in that roll or if a voter’s name that should be in a roll is not in that roll or wrongly removed or omitted from that roll is an enquiry that is NOT a matter for the Court of Disputed Returns to adjudicate under Part XVIII of the Organic Law. There is a remedy for it under the relevant law like all other electoral offences both under the Organic Law and the Criminal Code. Both the National Court and the District Court have jurisdiction over illegal practices and other offences associated with elections.

As to why this prohibition is necessary, Stephen J sets out the reason quite explicitly in Berrill’s case (supra) which he explained at p.474:

"Any electoral system which, instead of providing a means of putting the electoral rolls in order before an election allows alleged errors in those rolls to ground an attack upon the validity of the subsequent election exposed to risks of dislocation the democratic process which it is designed to serve. Hence, no doubt, the provisions commonly found in our election laws, for the prior adjudication of the disputes as to the state of the rolls, such disputes being treated as wholly distinct from and the proper subject matter of petitions concerning disputed elections and returns."

Free exercise of franchise based on universal suffrage is the cornerstone of democracy upon which our political process is founded and which we have inherited and cherished since self-government and independence.

Facilitation of this process entails building bricks and blocks upon which the system can function effectively and efficiently. Government machinery has been put into place to ensure that the process is in place and working at all times. The Boundaries Commission, the Electoral Commission and the National Census Office are part of this machinery whose function is to ensure that the system is in place and the process effectively responds to the needs, expectations and aspirations of the stakeholders which are the people and the nation as a whole.

No institution in a democratic government can challenge the very machinery without the danger of exposing its weakness and susceptibility that is the responsibility of the government of the day to contain.

But the citizen is not without redress if there really is such query or concern of the state of the common roll. Stephen, J also adds this at p.472:

"It is not to be thought that the fate of this petition discloses a situation in which a person whose name is wrongly removed from the rolls or who is wrongly refused entry upon the rolls is without remedy. On the contrary quite adequate remedies exist for those who choose to avail themselves of them. Enrolment may be claimed as of right by those who are qualified - s. 51 - and registrars are required to give effect to valid claims - s. 43. By s. 58 of the Act a person whose claim for enrolment has been rejected or whose name has been removed from a roll as a result of an objection may have recourse to a court of summary jurisdiction which is empowered to order enrolment or re-instatement on the rolls. The Act also allows a person entitled to be enrolled but whose name has been omitted from or struck off the roll by error or mistake to vote upon satisfying certain procedural requirements - s. 121. Quite apart from these statutory rights a remedy by way of mandamus would be available in appropriate circumstances to enforce the right to registration of a qualified person denied his rights and for whom for any reason the statute did not afford appropriate relief."

Essentially what this means is that there are proper avenues in place for a citizen to seek redress of his or her grievance if he or she is unhappy with the roll. The laws already in place in the Constitution, the Organic Law, the Criminal Code and other statutes to protect the integrity of election allow for citizens to comply with them to bring themselves within the ambit of the electoral system. They also provide remedies where there are deliberate breaches or errors discovered subsequently that could have adverse impact on an election. That action must be separate and distinct from an election petition and must be pursued independently of a challenge to the results or returns of an election.

It is a presumption of law that the Common Roll is assumed to be correct. In order to justify his suspicions that ineligible voters from different electorates were brought in to vote at Kotomi the Petitioner examined the Common Roll and began extracting names of persons not supposed to be on that common roll for Gotomi and one of whom is the witness James Suwary. I have no reason to doubt his evidence. He was a very credible witness in my view. But his evidence is not conclusive of any proof that all those persons the Petitioner alleged to be wrongly enrolled on the common roll were incorrectly or improperly recorded in the common roll for Kotomi Ward. Similar evidence was sought to be called in Darlinghurst Petition (1951) 51 S.R. (NSW) 204 where the court held that "to admit the evidence would not be ‘assuming the roll to be correct’ and would be inquiring ‘into the correctness’ of the roll within the meaning of s. 163 of the Parliamentary Electorates and Elections Act 1912-1949." Section 163 referred to in that Act is identically worded as section 214 of OLNLLGE.

In the case of In re The Nash Election Petition – Grant v Dunstan and Carney [1952] St. R. Qd. 53 where the Petitioner was not allowed to vote in the electorate he claimed to vote because in the exercise of creating a new electoral district and placement of electors on the new roll, his name was omitted from the roll, it was held:

"That....there had been an official error by the principal electoral officer in wrongly omitting the electors’ names from the roll, which had the effect of disfranchising them, but that under s.101 of the Elections Act, 1915 to 1948, the Elections Tribunal had no power to inquire into the correctness of the compilation of the rolls used for a election, but only into the election itself."

The whole exercise undertaken by the Petitioner, according to these authorities, was prohibited by Section 214 OLNLLGE for the Court to delve into because whatever the basis for the exercise, it is still enquiring into the correctness of the common roll. Even if there was an honest mistake in the compilation of a roll when an elector’s name is missed or removed, for the same reason that is not a matter for the court of disputed returns to inquire into.

It is abundantly clear that all the remaining grounds that question, challenge or dispute the state of 2002 Common Roll for Lufa Open Electorate cannot stand and they must equally be dismissed.

Allegation 12 (ground 12) and to some extent Allegation 13 (ground 12 (c) – (e)) complains of a conspiracy or a collaboration between the First and Second Respondent whereby two polling places scheduled for Ifafi mountain and Kotomi Aid Post were moved to Kotomi Community School and combined with the three other polling teams already scheduled for polling at the school. It is alleged that this is an illegal act that the Second Respondent is guilty of through the acts of its servants and agents.

Mr Ame argued that relocation of a polling booth was similar to abolishing a polling place following issue of writ for the election which is prohibited under section 43(2) of the Organic Law on NLLGE. This was never pleaded in the petition. There was no evidence led of any polling place being abolished. There was however evidence that two polling places in Kotomi Ward 27 were relocated to Kotomi Community School by the people in consultation with the electoral officials for various reasons including convenience of voters and polling officials as well as poor weather hours leading up to the polling day.

Section 115 OLNLLGE provides that the returning officer has the power to vary a polling schedule (s.115(2) and so does a presiding officer (sub-sec.(3)) where in his opinion it is necessary or desirable to meet an unforeseen contingency of emergency provided adequate publicity is made of that departure amongst the electors likely to vote in that polling place (sub-sec.(4)). There is nothing illegal in relocating polling places in the last minute if exigencies require such as bad weather – see In the Matter of Central Provincial Government Elections - Mathew Poia –v- Valerian Valai & Electoral Commission [1990] PNGLR 388 where the Court said at p.392:

"A schedule therefore may be varied upon adequate notice to allow for unforeseen circumstances arising at the time. This may be for such incidents as bad weather, transport difficulties, and the like. But what this part does not authorize is the cancellation of a polling place or failure to adhere to the polling schedule to such an extent that eligible voters are prevented from voting at all. In the event that an emergency or special circumstance arises, then certainly a schedule may be varied, with adequate notice being given to the voters affected so that they are able to vote at a different place or at a different time."

This ground is indeed incompetent in that section 117 prohibits an election from being challenged on the ground of failure to observe a polling schedule...or variation or departure from a polling schedule.

I am satisfied that the relocation of the two polling teams to Kotomi Community School was made in consultation with the community, the voting population and it was for the benefit of the voters as well as the polling teams. If there was anything improper or sinister or fraudulent in it, there has been no evidence of that. In any event that evidence alone, if proven to be true, could not make any slightest difference if no voter has complained.

The following grounds have not been substantiated by evidence and therefore cannot be sustained: Allegations 5, 6, 7, 8, 9, 10, 11 and 14 (grounds 7.5, 7.5C, 7.5D, 8, 9A, 9B, 9C and 12(i) – (k)).

Allegation 5 is merely a statement. It states that as the result of illegal practices the First Respondent polled 3,289 votes to win and refers to various sections of the Organic Law and the Criminal Code that he contravened in the process. There was no evidence led of any illegal practices such as to affect the result of the election for purposes of section 215 of the Organic Law.

Allegations 6 and 7 related to 705 ineligible voters from Ungai/Bena and 287 people from Henganofi Electorates flocking into Kotomi Ward 27 in truck loads and by foot who cast their votes in Lufa Electorate at Kotomi School. Not one single name on the petition was proved to have voted at Kotomi School and no evidence of any truck loads of people coming in to vote from outside.

There was no evidence in relation to Allegation 8 about First Respondent or anyone acting on behalf of the First Respondent pushing under age and ineligible voters to vote in Kotomi Community School in the number and names of villages mentioned in Ground 8. The same defect applies to Allegation 9. It pleads that the First Respondent is guilty of inducing former residents of Kotomi Ward to vote in the electorate when their names were no longer in Kotomi Ward 27. A witness Ilaove Fime called on behalf of the First Respondent had given evidence of this and I find nothing wrong with his evidence. He is entitled to vote as long as he is enrolled in the electorate. Otherwise this ground together with allegations 9, 10 and 11 are incompetent as questioning the correctness of the Roll.
It is rather strange to ground a petition against the First Respondent or any candidate in an election for that matter on any allegations of illegal practices concerning double-voting, double entries of names in the common roll, permitting under aged persons to vote, using ghost-names to vote and permitting ineligible voters whose names are not on the common roll for the electorate in that Ward to vote in the elections. The simple reason is that the First Respondent or a candidate is not responsible for the conduct of the elections but the Electoral Commission.

It is the constitutional function of the Electoral Commission pursuant to section 126 of the Constitution and the Organic Law on National and Local Level Government Elections to maintain an electoral process and safeguard the integrity of elections and to ensure that the system is independent from external influences and manipulations. If there are any breaches of the electoral laws in connection with polling and the casting of votes, the first and the last in authority responsible for ensuring exercise of free franchise is the Electoral Commission. By law the Electoral Commission is supposed to be properly and fully set to conduct polling in any polling booth where there is transparency and the integrity of secret voting by ballot is maintained and there are checks and balances to ensure that candidates and their supporters do not take advantage of the system and the electoral process. If there is a failure in the process and any of the illegal practices I referred to above are committed, the first in line to answer for these violations area the electoral officials.

All these grounds have not risen up at all from where they had fallen since the decision of the National Court on 10th April 2003[7] as no evidence has been led at all to substantiate them. They must therefore be dismissed.

The same also applies to Allegation 14 or ground 12(f) – (h) where the petition concludes that there was no free election conducted at Kotomi Community School when no evidence or sufficient evidence was led of disruption or disturbance at the election in Kotomi. Electoral officials have not complained of any intimidation and harassment by the voters. This ground has not been substantiated and must also fail.

Under Allegation 15 of ground 12 (i) – (k) the petitioner complains that 1,420 votes counted as informal in the LLG votes have significant bearing on the National Election results.

It is submitted that if the same number of people voted in the National Election and the Local Level Government Elections which were conducted concurrently by the same teams, the total ballot papers must square up for LLG, Open and Regional. Mr Ame submits that if 1420 votes in LLG were declared informal, the same number be declared informal in the National Election and be removed from the votes cast at Kotomi Ward 27.

Presiding officer for Team 60 John Tau admitted to partly contributing to this mistake on his part when he failed to initial or sign 800 ballot papers for LLG election. That evidence is self-explanatory and it can’t be taken further but it does not give any substance to the petitioner’s claim. That ground has no relevance to this petition and must be dismissed.

This ground has no proper or legal basis for the court’s deliberation as it is irrelevant or immaterial for purposes of Part XVIII of the Organic Law.

In the light of the above findings, the issue as to whether or not there really are 3,786 eligible voters in Kotomi Ward 27 is not for this Court to investigate and decide because of the injunction on this court by virtue of section 214 of the Organic Law on National and Local Level Government Elections. However with respect to allegations of illegal practices alleged independently of common roll, none of them have been made out and have been either struck out for want of substance and form or they lacked necessary evidence.

Pursuant to section 221 of the Organic Law on National and Local Level Government Elections an order to this effect and a copy of this decision is forwarded to the Clerk of the National Parliament.

I wish only to reiterate what I had stated earlier. It is seriously important that the concern raised by the Petitioner be investigated promptly to ascertain whether there is any substance in it. It is unfortunate that it had been brought to the fore in this manner. From the evidence before me on the figures provided by the National Statistician Nick Suvulo, the 2002 Common Roll for Lufa Open Electorate and the Tally Sheet for Lufa Open Electorate, there is a real cause for concern.

Costs follow the event. I further order that any security for costs held by the Registrar in respect of this Petition be shared evenly between the First and Second Respondent.

Lawyer for the Petitioner: Ame Lawyers
Lawyer for the First Respondent: Maladinas
Lawyer for the Second Respondent: Nonggor & Associates

^[1] See [2003] Unreported National Court Judgment – N2385
^[2] see [2003] Unreported and un-numbered Supreme Judgment in SC Rev. 30 of 2003
^[3] See SC Rev. 30 of 2003.
^[4] (1951) 51 S.R. (NSW) 204

[5] See Fox –v- Stirk and Bristal Electoral Registration Officer (1970) 2 QB 463 at 475.

[6] See EP No. 32 of 2002 – Dr John Waiko –v- Peter Oresi and EC [2003] Unreported National Court Judgment – 13 February, 2003.
^[7] [2003] Unreported National Court Judgment –N2385

National Court of Papua New Guinea

Karani v Silupa [2004] PGNC 249; N2517 (16 March 2004)