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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO 55 0F 2007
IN THE MATTER OF THE ORGANIC LAW
ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
AND A PETITION DISPUTING THE VALIDITY OF THE ELECTION FOR THE SEAT OF WESTERN HIGHLANDS PROVINCIAL IN THE 2007 GENERAL ELECTION
PAIAS WINGTI
Petitioner
V
KALA RAWALI,
PROVINCIAL RETURNING OFFICER
First Respondent
ELECTORAL COMMISSION
OF PAPUA NEW GUINEA
Second Respondent
TOM OLGA
Third Respondent
Mt Hagen: Cannings J
2008: 21, 22, 23 January
RULINGS
ELECTIONS – petitions – amendment – circumstances in which a petitioner requires leave of the court to amend a petition – withdrawal of grounds – whether leave should be granted to withdraw a ground of a petition.
ELECTIONS – petitions – whether a respondent to a petition against whom no allegations are made in the petition, can object to competency of the petition.
ELECTIONS – petitions – objection to competency of petition – whether grounds relied on in petition adequately pleaded facts and grounds relied on.
ELECTIONS – petitions – whether a respondent to a petition against whom no allegations are made in the petition, should be allowed to be involved in the trial of the petition.
An unsuccessful candidate challenged the result of an election to the National Parliament by filing an election petition containing three grounds. He joined the provincial returning officer and the Electoral Commission as first and second respondents and the elected member as third respondent. The third respondent filed an objection to competency of the petition. The petitioner responded by filing two applications: that the third respondent be prevented from prosecuting the objection to competency and that the third respondent not be involved in the trial of the petition, as no allegations of impropriety are made against him and the Organic Law prohibits more than one counsel acting for a party. During the course of the hearing of those matters, the petitioner sought leave to withdraw the third ground of the petition. The court heard submissions on the four applications together (the third respondent’s objection to competency plus the petitioner’s three applications). This is a ruling on the four applications, dealt with in this order: (1) the petitioner’s application for leave to withdraw a ground of the petition; (2) the petitioner’s application to prevent the third respondent prosecuting the objection to competency; (3) the objection to competency; and (4) the petitioner’s application to prevent the third respondent being involved in the trial of the petition.
Held:
(1) Withdrawal of a ground of a petition is not an amendment to the petition. There are no improper reasons for withdrawing the ground of the petition. The petitioner’s application for leave to withdraw a ground of the petition is granted.
(2) The principles of natural justice are an integral part of the underlying law of Papua New Guinea, the minimum requirement of which, expressly recognised by Section 59 of the Constitution, is: "the duty to act fairly, and, in principle, to be seen to act fairly". The elected member has a direct interest in this matter, whatever the outcome. Therefore the petitioner’s application to prevent the third respondent prosecuting the objection to competency is refused.
(3) It is important, indeed critical, in view of the Supreme Court decisions in Delba Biri v Bill Ninkama [1982] PNGLR 342 and Holloway v Ivarato [1998] PNGLR 99 that the requirements of Section 208 must be strictly complied with and that the facts relied on by the petitioner be clearly set out. The allegations made in the two remaining grounds of the petition are clear. The objection to competency is dismissed.
(4) The elected member is a party and has a right to be heard and has already been given leave under Section 222(1) to be represented by counsel. The petitioner’s application to prevent him being involved in the trial of the petition is refused.
Cases cited:
Delba Biri v Bill Ninkama [1982] PNGLR 342
Holloway v Ivarato [1998] PNGLR 99
Jimson Sauk v Don Pomb Polye and Electoral Commission (2004) SC769
Kamma v Itanu, Electoral Commission and Laimo EP No 11 of 2007, 05.12.07
APPLICATIONS
This is a ruling on four applications made prior to the hearing of an election petition.
Counsel:
A Manase, for the Petitioner
A Kongri, for the first and second Respondents
H Nii, for the third Respondent
23 January, 2008
1. CANNINGS J: Mr Tom Olga was elected as the Member for Western Highlands Provincial in the 2007 general election. The result was declared on 7 August 2007. Mr Paias Wingti was the first runner-up. He polled 137,981 votes, compared to Mr Olga’s 141,286, thus losing by 3,305 votes.
THE PETITION
2. On 14 September 2007, Mr Wingti filed a petition challenging the result of the election on three grounds:
3. The petitioner, Mr Wingti, named three parties as respondents:
4. The petition has passed through the normal pre-trial processes over the last few months. Directions hearings and a pre-trial conference have been conducted and last week in Waigani a status conference was conducted by the Judge Administrator, Sevua J, who confirmed the hearing date for the trial as 21 January 2008. The court convened on the appointed day and spent two days hearing four preliminary matters, which arose in the following way.
FOUR APPLICATIONS
5. In November 2007, Mr Olga filed an objection to competency of the petition, asserting that each of the three grounds of the petition and the whole petition is defective and should be dismissed.
6. Also in November 2007, Mr Wingti filed an application that Mr Olga should be prevented from prosecuting the objection to competency, on the ground that no allegations of impropriety are made against Mr Olga; the allegations being only against the returning officer and the Electoral Commission.
7. In January 2008, Mr Wingti filed another application seeking orders that Mr Olga should not be involved in the trial of the petition at all, as no allegations of impropriety are made against him and the Organic Law prohibits more than one counsel acting for a party.
8. During the hearing of those three applications, Mr Wingti made another application, this time seeking leave to withdraw the third ground of the petition.
ISSUES
9. The court heard submissions on the four applications together (the third respondent’s objection to competency plus the petitioner’s three applications). This is a ruling on the four applications which are dealt with in this order:
1 should the petitioner, Mr Wingti, be granted leave to withdraw the third ground of the petition?
2 should Mr Olga be prevented from prosecuting the objection to competency?
3 should the objection to competency of the petition be granted, in whole or in part?
4 should Mr Olga be prevented from being involved in the trial of the petition.
1 SHOULD THE PETITIONER, MR WINGTI, BE GRANTED LEAVE TO WITHDRAW THE THIRD GROUND OF THE PETITION?
10. Mr Nii, for Mr Olga, submitted that leave should be refused for two reasons. First, Mr Wingti was, in effect, seeking leave to amend his petition and amendments are not permitted more than 40 days after the declaration of an election result. Secondly, Mr Wingti wanted to withdraw the ground for dubious tactical reasons.
Is withdrawal of a ground an amendment?
11. The 40-day time limit for amending a petition comes from Section 208(e) of the Organic Law on National and Local-level Government Elections and from the decision of the Supreme Court in Delba Biri v Bill Ninkama [1982] PNGLR 342.
12. Section 208(e) says that a petition must be filed within 40 days after the declaration of the result of the election. In Biri v Ninkama, the Supreme Court (Kidu CJ, Kapi DCJ, Andrew J), when giving an opinion on constitutional questions referred to it by the National Court under Section 18 of the Constitution held that the National Court has no power to allow amendment of a petition after expiration of the time limit for filing the petition.
13. At first glance it would seem logical to regard the withdrawal of a ground as an amendment to the petition. Omitting a ground changes the text of a petition. Literally, it would be an amendment within the ordinary meaning of that word. However, when it is considered that the interpretation of the Organic Law in Biri v Ninkama was given in the context of answering a rather hypothetical question posed to the Supreme Court, I think it is reasonable to give the word ‘amendment’ a narrower and more practical construction. The Court was, I consider, referring to substantive (not cosmetic) amendments and to amendments that may cause prejudice to a respondent (not to amendments that reduced the issues that the respondent had to research and prepare for) or prolong (not shorten) the proceedings. I do not think the Supreme Court was saying that the National Court cannot in an appropriate case allow a petitioner to withdraw – as distinct from change or amend – one or more of the grounds of his petition.
14. I uphold the submission of Mr Manase, for Mr Wingti, that the withdrawal of one or more grounds of a petition does not amount to the amendment of the petition in the sense intended by the Supreme Court in Biri v Ninkama. There is therefore no outright prohibition against withdrawing grounds of a petition after the 40-day time limit.
15. In reaching that conclusion I have been greatly assisted by the recent judgment of Kandakasi J in Kamma v Itanu, Electoral Commission and Laimo EP No 11 of 2007, 05.12.07, which concerned an objection to competency of a petition challenging the result of the election in South Bougainville Open in the 2007 general election. His Honour granted leave to the petitioner, Mr Kamma, to withdraw certain paragraphs of his petition in the course of refusing an objection to competency. His Honour set out in clear and coherent detail the reasons he frankly considered Biri v Ninkama to have been wrongly decided, at least as far as the Supreme Court held that no amendments are permitted after 40 days. I do not need to say whether I agree with Kandakasi J, as I have decided that the withdrawal of a ground is not an amendment in the sense referred to in Biri v Ninkama.
Is there an improper motive behind the application to withdraw?
16. Mr Nii submitted that Mr Wingti is seeking leave to withdraw ground No 3 for dubious tactical reasons. His counsel, Mr Manase, now realises that this ground raises serious allegations against Mr Olga. If it is left in the petition, it will be difficult for him to succeed on his application to prevent Mr Olga prosecuting the objection to competency and the application that Mr Olga not be involved in the hearing of the petition. Mr Nii went so far as to submit that by seeking leave to withdraw ground No 3, Mr Wingti was trying to sabotage the proceedings and forcefully exclude Mr Olga.
17. Mr Manase did not directly refute the allegation that there was a tactical motive behind this application and was content to rest the application on a desire to reduce the time and costs of the hearing.
18. I do not think it really matters whether the withdrawal is sought for tactical reasons or what might be considered the nobler objective of saving time and costs. If the effect of the withdrawal of a ground is to save time and costs than generally leave should be granted. As Kandakasi J pointed out in Kamma, it is a normal part of the practice and procedure of the courts to allow amendments to pleadings and allow parties to withdraw parts of their case if this helps in efficiently disposing of cases and dispensing justice. It would be oppressive to force a party to argue a point of law that they no longer, for whatever reason, tactical or otherwise, wish to pursue.
19. I cannot see that Mr Wingti is guilty of any abuse of process by seeking leave to withdraw one of his grounds. If he is motivated by tactical reasons, there is nothing intrinsically wrong with that. Everybody who goes to court has tactics. They may be misguided if they don’t. Withdrawal of the ground will have the effect of reducing the amount of time the court has to devote to the hearing of the petition.
Ruling
20. I will grant leave to withdraw ground No 3 of the petition.
2 SHOULD MR OLGA BE PREVENTED FROM PROSECUTING THE OBJECTION TO COMPETENCY?
21. This issue relates to Mr Wingti’s application filed in November 2007 soon after Mr Olga filed the objection to competency. Mr Wingti is asking the court to rule that the objection to competency is itself incompetent and that Mr Olga should be prevented from prosecuting it.
The petitioner’s argument
22. Mr Manase, for Mr Wingti, highlighted that the petition makes no allegations against Mr Olga. It is confined to allegations against the returning officer and the Electoral Commission and their officers, servants and agents. They have not objected to the competency of the petition, so it must be presumed that they have no preliminary issues to raise and that the petition is considered competent. Mr Olga therefore has no right to object to the competency of the petition.
23. This submission is easier to maintain, now that I have granted leave to withdraw ground No 3, as it was a ground which – despite what Mr Manase suggests – appeared to clearly make allegations of involvement in illegal practices by Mr Olga. Ground Nos 1 and 2 do not make any allegations against Mr Olga.
24. Be that as it may, Mr Manase cited no authority for the proposition that the only persons who can object to the competency of a petition are those who are the subject of allegations in it. That does not, of course, mean that I should necessarily dismiss the proposition. Indeed, from the point of view of expediting the hearing of election petitions, it would seem to make sense to limit the category of people or parties who can file and prosecute objections to competency.
Natural justice
25. However, there are other principles of law to consider, most importantly the principles of natural justice or procedural fairness: a person whose interests are likely to be affected by an administrative or, as in this case, a judicial decision, has a right to be heard by the decision-maker, before the decision is made. The principles of natural justice are an integral part of the underlying law of Papua New Guinea, the minimum requirement of which, expressly recognised by Section 59 of the Constitution, is: "the duty to act fairly, and, in principle, to be seen to act fairly".
26. Mr Olga, the third respondent, has been joined as a party to the election petition. He has been invited by Mr Wingti, the petitioner, to take part, for very good reasons. Mr Olga is the elected member. Whatever the court decides will have a direct bearing on Mr Olga’s personal interests, as well as being of immense interest to the People of Western Highlands Province who are, at present, his constituents – the people whose interests he is duty bound to represent.
27. Having been properly joined, Mr Olga has a legitimate interest in ensuring that the jurisdiction of the National Court has been properly invoked; and this is so, irrespective of whether the allegations in the petition are made against him or others. He therefore has the right – just like any other person who is properly a party to the proceedings – to be heard on all aspects of the petition and to object to the competency of the petition. To deny him the opportunity to object would not be fair. It would be seen by any reasonable person to be unfair. It would be contrary to Section 59 of the Constitution. Therefore I uphold Mr Nii’s submission that as a matter of natural justice Mr Olga must not be prevented from prosecuting the objection.
Ruling
28. The application to dismiss the objection to competency is refused and Mr Olga has the right to prosecute the objection.
3 SHOULD THE OBJECTION TO COMPETENCY OF THE PETITION BE GRANTED, IN WHOLE OR IN PART?
29. I now consider the merits of the objection to competency in relation to the two remaining grounds of the petition.
30. When considering the matters raised by the respondents I have been mindful of the need for the National Court to exercise caution when deciding whether to dismiss a petition. The view has been expressed by the Supreme Court recently that perhaps an overly strict approach has been taken in the past. A number of petitions have been dismissed at the preliminary stage, leaving substantial complaints and allegations about the conduct of elections un-answered. For example, in Jimson Sauk v Don Pomb Polye and Electoral Commission (2004) SC769, the Supreme Court (Sakora J, Sevua J, Gavara-Nanu J) said:
Because of the frequent nit-picking, technical objections raised in the guise of real substantive issues of competency or jurisdiction (based either on ss 208, 209 and 210 Organic Law, supra, or ss 50 and 103 Constitution), some very serious and wholesale irregularities, not to mention blatant illegal practices, at the campaign, polling and counting stages of an election more often than not escape judicial scrutiny and remedy. So much so that the Constitutional authority whose direct duty and responsibility it is to organize, conduct and complete free and fair elections jumps on the bandwagon, as it were, to suppress (or have struck out or dismissed) any complaints about or challenges to the conduct of the elections.
31. That case and others in which the courts have expressed similar sentiments were brought to my attention by Mr Manase. I have taken those views into account, while at the same time being mindful of my obligation to apply the prevailing law which, as emphasised by Mr Nii, is still as expressed by the Supreme Court in Biri v Ninkama: that an election petition must comply strictly with the requirements of Section 208 of the Organic Law.
Ground 1: the alleged failure to count five ballot boxes
32. This ground of the petition alleges that the electoral officials were guilty of various errors and omissions that resulted in five ballot boxes, containing about 3,181 votes, not being counted. The details of how these votes came to be omitted from the final tally is pleaded in nine paragraphs, the last one stating:
As a result of the failure by the first and second respondents and their agents and servants, the result of the election is likely to be or will in fact be affected pursuant to Section 218(1) of the Organic Law on National and Local-level Government Elections.
33. I will now set out the grounds on which Mr Nii, for Mr Olga – supported by Mr Kongri, for the returning officer and the Electoral Commission – submitted that this ground of the petition should be dismissed as incompetent; and give my ruling in relation to each of the grounds.
(a) The ground does not demonstrate how the result was in fact affected
34. Mr Nii submitted that, as this ground of the petition is alleging that electoral officials were guilty of errors or omissions, it must meet the requirements of Section 218(1) of the Organic Law, which says that only errors and omissions that actually affect the result of an election should vitiate (be a reason to invalidate) the election.
35. Section 218(1) (immaterial errors not to vitiate election) states:
... an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election. [Emphasis added.]
36. Mr Nii points out that the number of votes that the petitioner claims were not counted was only 3,181, which is 124 less than the number of votes – 3,305 – by which Mr Wingti lost the election. So, even if all the allegedly uncounted votes were allocated to Mr Wingti, he would still lose the election; and it could not be argued that the alleged errors or omissions affected the result.
37. I reject this submission for two reasons. First, as highlighted by Mr Manase, the election was conducted under the limited preferential voting system, which sees 1-2-3 preferences allocated and candidates eliminated one at a time. It is no longer a simple matter of adding up votes as it was under the first-past-the-post system. The counting of 3,181 votes and the distribution of preferences flowing from them might well affect the result of the election, despite that number being less than the difference of 3,305 recorded when the result of the election was declared.
38. Secondly, it is not correct for the court to microscopically consider each ground of a petition and require that it support the conclusion that the errors or omissions alleged within it actually affected the result of the election. The court must consider a ground in the context of the whole petition.
(b) Gross ambiguity in pleading relief sought
39. Mr Nii takes issue with the final paragraph of ground 1 and in particular the part that reads "the result of the election is likely to be or will in fact be affected pursuant to Section 218(1)". He submits that this is vague and confusing. If errors or omissions of electoral officials are being alleged it must be pleaded that those errors or omissions "did affect" the result of the election – not that they are "likely" to have affected the result. It is only correct to plead that the result of the election was "likely to be affected" if the ground of the petition is based on illegal practices. Mr Nii based this submission on Section 215(3) of the Organic Law (voiding election for illegal practices), which states:
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. [Emphasis added]
40. I reject Mr Nii’s submission, for two reasons. First, as highlighted by Mr Manase, there is no requirement for a petition to state the particular provision of the Organic Law being relied on to dispute the election. Section 208 of the Organic Law prescribes the requirements of a petition and does not say that the provision relied on has to be referred to. Section 208 (requisites of petition) states:
A petition shall—
(a) set out the facts relied on to invalidate the election or return; and
(b) specify the relief to which the petitioner claims to be entitled; and
(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
(d) be attested by two witnesses whose occupations and addresses are stated; and
(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).
41. What is important, indeed critical, in view of the Supreme Court decisions in Biri v Ninkama and Holloway v Ivarato [1998] PNGLR 99, is that the requirements of Section 208 must be strictly complied with and that the facts relied on by the petitioner be clearly set out.
42. Secondly, even if it is accepted that the provision of the Organic Law being relied on should as a general practice be specifically referred to, it is not fatal to the petition if an incorrect provision is referred to or if incorrect words are inserted. If a petition makes absolutely no sense or is so verbose or the grammar and syntax is so poor that it defies comprehension or the respondents genuinely are prejudiced by not knowing what case they have to meet, then the court should seriously consider striking out the ground of the petition or the entire petition. But that is not the case here. In my view the allegation made in ground No 1 of the petition is clear. Any reasonable person in the position of the respondents will know the case that is to be met. The issues are clear cut. Respondents should not pretend that they do not understand the case they have to meet and come to court and be permitted to play dumb.
(c) The facts pleaded are logically inconsistent or incoherent
43. Both Mr Nii and Mr Kongri focussed on the paragraphs of ground No 1 that referred to a court order to suspend counting and to a direction from the Electoral Commission to the returning officer for one of the open electorates and argued that those paragraphs did not logically relate to the gist of ground 1 – that five ballot boxes were not counted.
44. I agree that on a first reading of those paragraphs it is difficult to see how they logically relate to each other. However, Mr Manase gave a reasonable explanation when he responded to this objection, sufficient to satisfy me that this ground of the petition should not be struck out. Ground No 1 contains a very serious allegation: five ballot boxes were never counted. The circumstances in which it happened – if it did happen – remain to be proven through evidence that can be adduced and tested at the trial of the petition.
(d) Inclusion of irrelevant material that does not allege any error or omission
45. Mr Nii submitted that some of the paragraphs contained irrelevant information that did not disclose any alleged error or omission. For example, the first three paragraphs state:
After the completion of polling in the Western Highlands Province on 10 July 2007, all provincial ballot boxes with ballot papers were received by the first and second respondents, their officials and agents at the counting centre at the Kimininga police barracks gymnasium on 15 July 20007.
At that time the following ballot boxes for the Western Highlands Provincial electorate cast in the Mt Hagen and Dei Open electorates were in dispute and objections were raised by the various scrutineers as the counting of the same: ...
On or about 20 July the second respondent issued a media statement that all ballot boxes for the 2007 general election throughout the country had to be opened and ballot papers counted and any disputes can be raised by way of an election petition.
46. I reject the submission that these paragraphs and those similar to them need to be struck out of the petition. The facts alleged are part of the background to the gist of ground No 1 of the petition – that five ballot boxes were never counted.
(e) Insufficient details of scrutineers and other personnel
47. Mr Nii submitted that ground No 1 was deficient as in a number of instances it did not give the names of individuals referred to. For example, the second paragraph simply referred to "various scrutineers", without naming them. This made it very difficult for the respondents to identify those people and obtain instructions on how to respond to the allegations.
48. I have carefully examined the references to individuals and I do not consider that the respondents are prejudiced by the lack of detail. The petition is required to set out the facts relied on. In some cases, like the reference to "various scrutineers", names are simply not necessary. In other cases, where other officials are referred to, names may be desirable. But there is no hard and fast rule that a petition must give the name of every individual referred to.
Conclusion re ground 1
49. Ground 1 is a proper ground and will not be struck out.
Ground 2: the alleged inflation of Mr Olga’s tally by 5,000 votes
50. This ground of the petition alleges that electoral officials and security personnel committed various illegal or improper practices that resulted in Mr Olga’s tally being inflated by about 5,000 votes. It is alleged that after the 24th elimination, there were two candidates left standing: Mr Wingti (126,415 votes) and Mr Olga (117,196 votes). Mr Wingti had a lead of 9,219. A court order was then made to stop the counting and when the order was announced by an Electoral Commission officer, Police Force and Defence Force officers intervened and forcefully removed scrutineers and counting officials from the counting centre. Ballot boxes containing about 5,000 ballot papers were taken to Mt Hagen Police headquarters on the night of 5 August 2007 and brought back the next day. A number of counting officials and scrutineers observed that when those ballot papers were brought back for counting, the number of votes put on the table allocated for Mr Olga tripled from what it had been the previous day.
51. The details of the allegations are pleaded in about 40 paragraphs, the last two stating:
Consequently those errors or omissions or illegal practices committed by the security personnel and the returning officer is likely to or will in fact affect the results of the election.
Consequently about 5,000 ballot papers were bundled up afresh for the third respondent in the night prior to the resumption of counting on 6 August 2007. Thus the third respondent’s tally was inflated by the illegal practice of the security personnel and the election officials who had custody of the unbundled and uncounted ballot papers in the six ballot boxes the previous night.
52. I will now set out the grounds on which Mr Nii, for Mr Olga – supported by Mr Kongri, for the returning officer and the Electoral Commission – submitted that this ground of the petition should be dismissed as incompetent; and give my ruling in relation to each of the grounds.
(a) Failure to set out the jurisdictional basis of the relief sought
53. Mr Nii pointed out that this ground, unlike ground 1, does not refer to any specific provision of the Organic Law as the jurisdictional basis of the relief sought. That is, it does not say something like ‘the result of the election was likely to be affected under Section 215(3) of the Organic Law’. Mr Nii submits that though there is some reference to Section 215(3) (by the use of the words "is likely to ... affect the results of the election"), those words are mixed up with words from Section 218 ("will in fact affect the results of the election"). Therefore the pleading is confusing and defective.
54. I reject this submission for the same reasons I rejected a similar submission concerning ground No 1 of the petition. The petitioner does not have to recite the law. He only has to make the facts clear. The issues raised by this ground of the petition are clear. The respondents are not prejudiced by the failure to specify the provision of the Organic Law relied on.
(b) Incorrect description of the respondents
55. There are several paragraphs that misdescribe the respondents. For example, paragraph (g) refers to "the presiding officials of the second and third respondents". Clearly this was intended to be "the first and second respondents".
56. Mr Nii has seized on these drafting errors and submitted that they make ground No 2 incomprehensible. Respondents should not have to speculate about these important details, he submitted.
57. Mr Manase confessed that there were typographical errors in the petition and asked for leave to amend them, which I refused as I thought it unreasonable to be making such an application during the course of responding to an objection to competency. Also, an application of this nature must be made in writing.
58. Be that as it may, I uphold Mr Manase’s submission that, at this stage, the errors are inconsequential. The errors are obvious to any reasonable person reading this ground of the petition. They are cosmetic matters that can be tidied up later.
(c) Names not provided
59. Mr Nii points out that ground No 2 makes serious allegations against Police Force and Defence Force members without naming any of them. This has made it difficult for the respondents to prepare their case. Electoral officials, security officers and candidates are also referred to, without being named. The petitioner should at least have named the Police Force and Defence Force officers who were in charge of the operation.
60. I reject this submission for the same reasons given for rejecting a similar objection in ground No 1. The names of officials would reasonably be expected to be known by the returning officer and the Electoral Commission and they are the respondents whose servants and agents have allegedly been involved in illegal practices.
(d) Many paragraphs do not plead any illegal practice
61. Mr Nii pointed out that many paragraphs do not contain any allegation of illegal practices; as if to suggest that each and every paragraph of a petition must allege something that has adversely affected the result of the election.
62. I reject the submission that those paragraphs are somehow defective. A petition has to be drafted in such a way that it tells a story. It sets out a narrative of events, some of which will, on their own, be innocuous. But it is still desirable to set them out in order for the meat of the allegations to make sense.
(e) Many paragraphs do not plead how the result is likely to be affected
63. Mr Nii’s complaint that many paragraphs do not plead how the result of the election was likely to be affected suffers the same fate as his complaint that many paragraphs do not plead any illegal practice. The submission is misconceived.
(f) The allegation is too vague
64. Mr Nii submitted that it was not good enough for the petitioner to allege that "about 5,000 ballot papers" were bundled up afresh for the third respondent. To say "about 5,000" was too vague.
65. I consider this submission to also be misconceived. It misses the point that the petitioner does not really know exactly by how many votes the third respondent’s tally was inflated. And, if the allegations in the preceding paragraphs of the petition are true, he cannot reasonably be expected to know. This ground sets out the grounds – the facts – on which he believes that the third respondent’s votes have been inflated. The allegation is sufficiently clear.
Conclusion re ground 2
66. Ground 2 is a proper ground and will not be struck out.
Ruling
67. The objection to competency is dismissed.
4 SHOULD MR OLGA BE PREVENTED FROM BEING INVOLVED IN THE TRIAL OF THE PETITION?
68. This is Mr Wingti’s third application. He wants an order preventing Mr Olga from cross-examining witnesses, calling evidence and otherwise being involved in the proceedings, except perhaps by making submissions, through his counsel, on points of law.
69. It is a similar application to the one I have dealt with under heading (2) above and the reasons Mr Manase submitted in support of it are similar. He again has pointed out that the two remaining grounds of the petition contain no allegations against Mr Olga, so why should he be involved in the proceedings, adding to the time and expense of the trial? I gave the answer before: natural justice. A lot is at stake for Mr Olga in this case so he has a right to be heard before the court makes any decision that might directly affect him.
70. Mr Manase put up another argument for limiting Mr Olga’s involvement, based on Section 222 of the Organic Law. This is the provision often referred to by the courts as indicating that they and lawyers need to take a less legalistic approach to election petitions. It even suggests that perhaps election petitions would be more speedily disposed of if lawyers were not involved at all.
71. Section 222 (counsel or solicitor) states:
(1) A party to a petition shall not, except by consent of all parties or by leave of the National Court, be represented by counsel or solicitor.
(2) In no case shall more than one counsel appear on behalf of a party.
72. Mr Manase submitted that, as the returning officer and the Electoral Commission are already represented by Mr Kongri, and that, as no allegations are made against Mr Olga, to have Mr Nii also appearing in the case amounts to having two counsel appearing for the respondents’ side, whereas Mr Wingti, the petitioner, is restricted to one.
73. This submission is logically flawed and I see no merit in it. Mr Olga is a party. He has a right to be heard and he has already been given leave under Section 222(1) to be represented by counsel. Mr Nii is his counsel. Mr Kongri is counsel for the returning officer and the Electoral Commission.
Ruling
74. I refuse the application to prevent or limit Mr Olga’s involvement in the proceedings.
COSTS
75. I have dealt with four applications and ruled in the petitioner’s favour on two of them (the first and the third) and in the respondents’ favour on two (the second and the fourth). In these circumstances, it is appropriate that all parties bear their own costs.
ORDER
(1) Leave is granted for the petitioner to withdraw the third ground of the petition (paragraphs C3 (a) to (h)) and it is accordingly withdrawn.
(2) The application to prevent the third respondent prosecuting the objection to competency is refused.
(3) The objection to competency is dismissed.
(4) The application to prevent or limit the third respondent’s involvement in the proceedings is refused.
(5) Parties shall bear their own costs.
(6) The trial of the petition shall proceed forthwith.
Rulings accordingly.
_______________________________________
Steeles Layers: Lawyers for the Petitioner
Nonggorr & Associates: Lawyers for the 1st and 2nd Respondents
Harvey Nii Lawyers: Lawyers for the 3rd Respondent
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