|
|
Home
| Databases
| WorldLII
| Search
| Feedback
National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
(1) E.P NO 20 OF 2012
BETWEEN:
DANIEL BALI TULAPI
Petitioner
AND:
AIYA JAMES YAPA LAGEA
First Respondent
AND:
ALBERT WENS, RETURNING
OFFICER FOR KAGUA ERAVE
Second Respondent
AND
ANDREW TRAWEN, THE ELECTORAL COMMISSIONER
Third Respondent
AND
THE PAPUA NEW GUINEA
ELECTORAL COMMISSION
Fourth Respondent
(2) E.P. NO 25 OF 2012
BETWEEN:
KOMEALI KAPO ROPA
Petitioner
AND
AIYA JAMES YAPA LAGEA
First Respondent
AND
ALBERT WENS, RETURNING
OFFICER FOR KAGUA ERAVE
Second Respondent
AND
ANDREW TRAWEN, THE ELECTORAL COMMISSIONER
Third Respondent
AND
THE PAPUA NEW GUINEA
ELECTORAL COMMISSION
Fourth Respondent
(3) E.P NO 35 OF 2012
BETWEEN:
NEMO YALO
Petitioner
AND
AIYA JAMES YAPA LAGEA
First Respondent
AND
ALBERT WENS, RETURNING
OFFICER FOR KAGUA ERAVE
Second Respondent
AND:
ANDREW TRAWEN, THE ELECTORAL COMMISSIONER
Third Respondent
AND:
THE PAPUA NEW GUINEA
ELECTORAL COMMISSION
Fourth Respondent
Mendi: Injia CJ
2013: 6, 7, 8 & 13 May
ELECTION PETITION- three petitions – objections to competency – consolidated hearing - exercise of discretion– objections upheld or dismissed – Organic Law On National And Local –Level Government Elections, s208 (a), (d), s 210, s 214, s 215 (1) & (3), s 218, s286 1)(f); National Court Election Petition Rules 2002(as amended) r15; Practice Directions No.2 of 2012; Criminal Code (Ch 62), s 103 (a) (i) & (iii); Constitution, s 50.
Facts
Three Petitioners brought separate petitions challenging the election result for the Kagua-Erave Open Electorate in the 2012 General Elections. The petitions were filed pursuant to Part XVIII of the Organic Law on National and Local-Level Government Elections (Ch 1) (OLNLLGE). The Respondents in all three petitions were the same. The grounds in the petition relied upon to invalidate the election or return include illegal practices, errors, omissions and irregularities. The Respondents filed separate notices of objection to the competency of each petition. The grounds of objection related to the question of non-compliance with the requirements of OLNLLGE, s 208 (a) and (d), and s 214. The trials of these three petitions were consolidated by direction of the Court upon agreement of the parties. At the commencement of the trial, the objections to competency were heard first. This judgment comprises the ruling on those objections.
Held:
Cases cited:
Papua New Guinea Cases
Agonia v Karo (1992) PNGLR 463
Biri v Ninkama [1982] PNGLR 342
Ivarato v Holloway [1988] PNGLR 99
John Wemin Mili v Simon Philip Gaima & Electoral Commission [1997] PNGLR 645
Karo v Kidu [1997] PNGLR 28
Kopaol v Embel (2003) SC727
Maino v Avei [2002] SC 633
Mune v Agiru [2009] SC 590
Nomane v Ango [No.2] (2003) N2384
Sauk v Polye [2004] SC 769
Overseas Cases
Payne v British Time Recorder Co [1992] 2 KB I
Counsel:
T.Waisi, for the Petitioner in EP 20/2012
A Kongri, for the Petitioner in EP 25/12
Petitioner in person in EP 35/12
S.Bonner, for the First Respondent in EP 20/2012
P Kuman, for the First Respondent in EP 25/2012
S.Tadabe, for the Second, Third and Fourth Respondents in EP 20/12, EP 25/12 &
EP 35/12
CONSOLIDATED HEARING – RULINGS ON OBJECTIONS
TO COMPETENCY OF PETITIONS
13th May, 2013
1. INJIA CJ: Introduction: These are three (3) election petitions brought pursuant to Part XVIII of the Organic Law on National and Local-Level Government Elections (Chapter 1) (OLNE).
2. The three (3) petitioners filed separate petitions challenging the result of the election for the Kagua - Erave Open Electorate in the 2012 General Elections. The Petitioners were amongst other candidates who lost the election to the First Respondent. The petitions contain various grounds for invalidating the election that are supported by allegations of fact. The grounds include illegal practices, errors and omissions and irregularities.
3. In separate notices of objection, the Respondents challenged the competency of each petition. This is a joint ruling on a consolidated hearing of those notices of objection to competency.
4. Counsel made extensive submissions, both oral and written, on the issues raised in those objections for my consideration. It is not necessary for me to set them out separately. Those submissions and my consideration of them are embodied in my reasoning.
Consolidation
5. A consolidated hearing of two or more causes of action is usually ordered or directed by the Court where there are similarities in the causes of action, the issues of fact and law, the parties' interests their desired case outcomes; such that it is desirable that the actions should be disposed of at the same time. The main purpose of a consolidated hearing is that it saves time and costs: Payne v British Time Recorder Co. [1992] 2 K.B 1 at 16. The terms upon which the consolidation ordered should set the procedural platform for the manner in which the proceedings are conducted and those terms may vary from case to case.
6. The terms of the consolidation in these petitions were set by Court by way of directional orders issued upon agreement of the parties. It was to be a joint trial of the three petitions, at the same time, in sequence of their filing, at the same venue and by the same judge; but the notices of objection in each petition were to be heard and determined separately. In accordance with that direction, I heard the various objections to competency separately, at the same time in the sequence of their filing, at Mendi, between the 6th, 7th and 8th May 2013. I now deliver a joint but separate ruling in respect of each petition.
7. There are several points of law that are common to the three petitions that were argued separately in varying degrees of detail. Consistent with the nature and purpose of consolidation, I consider them together and apply the conclusions on those points of law to the circumstances of each petition.
Common points of law for determination
8. Four (4) common points of law emerge from the grounds of objection argued before me. The first is the proper approach with regard to judicial scrutiny of a petition to determine if it meets the formal requirements of, s 208 by virtue of s 210. The second is the nature of the requirement under s 208(a), for a petition to plead grounds relied upon to invalidate the election. The third is the requirement under s 208 (a) to plead essential and relevant facts to support a particular ground. The fourth concerns pleading the essential facts required to be pleaded under s 208 (a) to demonstrate on the face of the petition, how the result of the election was or is likely to be affected as required by s 215 (3) (invalidating an election or return on account of illegal practices) and s 218 (invalidating an election on account of errors and omissions).
9. We are all too familiar with the often cited provisions of OLNE that relate to these points. Those provisions are 2006, s 208, s 209, s 210, s 215 & s 218. For purposes of completeness, I reproduce those and other relevant provisions of OLNE in the Schedule appearing at the end of this ruling
(1) Approach on judicial scrutiny of a petition to determine if a petition meets the formal requirements of OLNE, s 208.
10. The approach adopted in judicial scrutiny of petitions is one of the main points argued in these proceedings. The petitioners urged upon me to adopt a flexible or liberal approach as opposed to the rigid or strict standard of scrutiny. Counsel referred to them as the liberal approach and the strict scrutiny approach.
11. A good starting point is the Supreme Court's decision in Biri v Ninkama [1982] PNGLR 324. There is no contest amongst the parties as to the principles enunciated in that this case and its relevance to this day. Petitioners must strictly comply with the mandatory and formal requirements of s 208 and s 209 by virtue of s 210. Petitions which fail to meet those requirements should be struck out for want of competence. OLNE, s 217 does not come into play at that preliminary phase; it applies to the trial phase. Those principles have not been overruled by a subsequent Supreme Court and as submitted by counsel for the parties, still remain good law.
12. The next important statement of principle is that from Sheehan J in Agonia v Karo (1992) PNGLR 463, where his Honour said:
"Any aggrieved person has a right to bring a petition challenging an election for breaches of the electoral process. But an election process does not inaugurate some general inquiry into the process of an election to see if any offence 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 specific charges that, if proved will result in an election being set aside."
13. This principle has been adopted and applied in many cases and to my mind, it is still good law.
14. Since those cases, Courts have adopted different approaches or standards of scrutiny of matters pleaded under s 208, in particular s 208 (a), to a point where the Supreme Court in Sauk v Polye (2004) SC769, expressed great dissatisfaction with regard to the contribution made by "too much lawyering" leading to the difference in judicial approaches . The Court said:
"There is definitely, in our opinion, too much lawyering in the electoral process! There is too much unwelcome interference and influence by meddlesome legal eagles. The courts have a duty to be wary of these, and be ever mindful of the public interest that ought to operate both ways in election petitions. Because of the current climate of unnecessary and unmeritorious objections and challenges to election petitions, we must note that the election petitions in the late 1970s and early 1980s were never attended by the long drawn-out interlocutory challenges and reviews upon reviews. These were straight-forward affairs that were dealt with by individual judges on circuits and disposed of speedily, both any preliminary issues as to Constitutional qualifications or otherwise, and the substantive allegations pursuant to the Organic Law.
Then in the 1990s the courts threw open their doors to all manner of applications and challenges. These quickly developed into what came to be described as objections on competency. Meritorious or not, everyone was heard, again and again on some invented grounds. We would respectfully describe the conduct of the election petitions then as an unmitigated disaster, though the eventual judicial determinations were conclusive of the issues and cannot be impeached here. So much so that these disastrous experiments of the 1990s led to the felt need to instil some order to the conduct and determination of election petitions. Thus were promulgated pursuant to s 184 Constitution and s 212 (2) of the Organic Law, the National Court Petition Rules in July of 2002, and under Part XVIII Organic Law the Supreme Court Election Petition Review Rules of November 2002."
15. It is unfortunate to say the least that the introduction of rules of Court in 2002 have done little to improve the quality of drafting of petitions and reduce the number of competency challenges, ever since 2004 when the Supreme Court expressed those sentiments in Sauk v Polye. It is the poor standard of drafting and pleading of grounds and facts in support thereof under s 208(a) that has attracted the bulk of the competency challenges that has left a divided Court with regard to the approach to judicial scrutiny of petitions. The issue remains to be resolved by the Supreme Court constituted by five or more judges in an appropriate case. To the extent that Biri v Ninkama is read to require strict adherence to the requirements of s 208 and s 208(a) in particular, in terms of what constitute grounds in a petition and facts in support thereof, Biri v Ninkama and all those other Supreme Court and National Court decisions that support that approach represent one view (strict scrutiny approach). Polye v Sauk represent the liberal approach. In Polye v Sauk the Court was dealing with questions concerning compliance with the requirements of s 206 but the observations made by the Court do concern the proper approach on scrutiny of petitions under s 208 by virtue of s 210. As I intimated to counsel during argument, a Supreme Court comprising five or more judges may be constituted in the not too distant future to settle the law on this point. Until that happens, when judicial opinion is still divided, a National Court Judge is free to choose which approach to adopt in the case before it.
16. For my own part, I prefer a middle position which for want of a better term I describe as the third approach, whereby judicial scrutiny of a petition's competency under s 210 is driven by fairness, purpose and substance; rather than procedural style, form and legal technicalities.
17. We should not forget that petitions are intended to be filed by petitioners in person and the involvement of lawyers is restricted to the agreement of the parties; that when an overwhelming majority of our people are ordinary people with little or no formal education, many who choose to challenge the election result or return by way of an election will be ordinary people. Simplicity, purpose and substance involving a holistic reading of the matters set out in the petition are the guiding principles that should rule the day over style, form and legal technicalities. Upon reading as a whole the grounds upon which the election result is sought to be invalidated and the factual allegations in support thereof, if the purpose, essence and substance of the factual pleadings conform to the requirements of s 208 (a), the pleadings are in order and they should be allowed to proceed to trial. For instance, a ground may be accompanied by a series of related factual pleadings that describe an event that form a single chain of events, may be scattered throughout the petition. They should be read together and as a whole in order to determine if in essence or substance, those factual pleadings support the particular ground for voiding the election. The Court should be able to extract or deduce the essential facts from such pleadings in order to satisfy itself whether they comply with the requirements of s 208 (a).
18. The Court's search for simplicity, purpose and substance in the manner described does not mean lowering minimum standard of a good pleading expected of a petition as a legal document that befits the standard of legal documents filed in the high Court. All too often the National Court is congested with petitions that contain all manner of grounds and factual allegations that make no sense and lack essential facts and substance. They are thrown into the pleading basket hoping that the Court would sift through the body of material to see if they meet the requirements of s 208 (a). Petitioners would be well advised to know that the Court sits as a neutral referee in an adversarial setting and it ought not and will not lend itself in aid of the parties to make out a case for or against a party. The Court will not hesitate to strike down grounds in a petition and factual allegations in support thereof that lack essential facts; are pleaded in misguided, imprecise, vague and duplicitous manner that in the end lack substance. The Court will also not allow a petitioner to advance vague, general and alternative factual pleadings or legal grounds in a petition, hoping to search for answers to specific facts and grounds to make out a case in the course of the trial proper. In a case where a petitioner drafts and files his or her own petition, any person of ordinary intelligence with a fair understanding of what is required of him or her to plead in a petition should be able to adhere to this minimum standard in order for the petition to be sustained through the scrutiny process. Granted the petition sets out the ground(s) upon which the election or return is sought to be invalidated and the essential facts in support thereof in a clear and concise manner expressed, the approach to judicial scrutiny should be driven by fairness, purpose and substance.
(2) Pleading the ground relied upon to invalidate the election, under OLNE,s 208 (a).
19. The petition must state two things – the ground upon which the election or return is sought to be invalidated and the facts in support of that ground. The two requirements are not expressly stipulated in s 208 (a) but derived, by necessary implication, from the expression " facts relied on to invalidate the election or return" appearing in, s 208 (a). That expression is used generically to refer to the events or happenings that constitute the relevant circumstances that relate to the legal ground for invalidating an election or return provided in OLNE: see Ivarato v Holloway [1988] PNGLR 99 at 101. Kopaol v Embel (2003) SC727. For factual pleadings alone without any connection to the recognized legal ground for invalidating an election or return makes no sense. To simply plead the legal ground for invalidating an election or return with the supporting facts does not make sense either. The same point was made by the Supreme Court in Mune v Agiru ( 2009) SC590, in the following terms:
"The interpretation to be accorded to s.208(a) was discussed by the Supreme Court in Holloway -v- Ivarato, supra. In that case, it was decided that the facts which must be set out in a petition in compliance with s.208(a) must be the material or relevant facts which would constitute the ground(s) upon which an election may be invalidated but not the evidence by which they might be proved. I also agree with Woods, J that there is no requirement in s.208(a) that a petition should plead the law or relevant statutory provision which defines that ground. However, prudent pleading enables the court and the opposing party to be clear about the facts as well as the grounds constituted by those facts, upon which the election is sought to be invalidated. In certain situations, where the ground alleged is founded on a breach of statutory provision which confers a power or imposes a duty on a public official, it might become necessary to plead the relevant statutory provision referred to by the alleged facts. In other cases, simply pleading the facts alone may not suffice. To simply plead the provision breached without supporting facts will (also) not suffice".
20. Lawyers, parties and even Courts nowadays all too often use the term "grounds in a petition" loosely to refer to the ground for invalidating an election or return as well as the facts pleaded in support of the ground. This leads to confusion. The Grounds upon which an election or return may be invalidated are set out in s 215 (1) (illegal practices - bribery, attempted bribery, undue influence, attempted undue influence), s 215 (3) (a) (other illegal practices); and, s 218 (errors and omissions). They are distinct legal grounds and there are fundamental legal differences between them. The essential and relevant facts pertaining to those grounds are different from those legal grounds.
(3) Pleading essential and relevant facts to support a ground under OLNE, s 208 (a).
21. In some decided cases, it is suggested that the requirement under s 208 (a) is to plead facts and not the law. However because those facts go to support a legal ground for invalidating an election that is expressly provided by OLNE, the relevant law to which those facts relate to is necessary to be pleaded alongside the facts.
22. Essential facts must be distinguished from the evidence that go to prove those facts. Petitions must plead facts and not the evidence by which those facts are to be proved. Pleading the date, the time, the name of the person involved, the amount of money involved, the names of persons who were involved either as victims or perpetrators, the number of eligible voters or votes in figures involved; are few examples of the kind of essential facts required to be pleaded by s 208 (a) in conjunction with s 215 and s 218. Anything more go to detail and evidence. It is unnecessary to plead such detail. For instance, the person who witnessed the illegal act being committed, what time of the day the illegal act was committed, the family or tribe to which the person bribed belongs to, go to the evidence that are not required to be pleaded.
(4) Essential facts to demonstrate how the result of the election was or is likely to be affected ( s 215 (3) and s 218)
23. With regard to grounds in a petition that come under s 215(3) and s218, facts necessary to show that the result of the election was likely to be affected (s 215(3)) or affected the result of the election (s 218) must be pleaded in a clear and concise manner.
24. Under the democratic electoral process adopted in OLNE, the right to hold elective public office is determined by majority rule expressed in vote numbers. The electoral system has all the necessary safeguards to ensure that the election is genuine, open and free and that the election result is determined by the number of genuine votes cast at an election and assigned to candidates at the scrutiny. The election process provides for the number of votes involved at every important step of the election process to be made available by the Electoral Commission and its officers for public consumption. Those numbers include the number of registered voters for an electorate, the number of candidates for an electorate, the number of ballot papers placed in numbered ballot boxes assigned to an electorate and assigned to specific polling places under the control and responsibility of Returning Officers and Presiding Officers respectively, the number of votes cast at polling places, the number of ballot boxes and ballot papers counted at the scrutiny and the number of formal (and informal votes) votes assigned or scored by candidates at the scrutiny culminating in a declaration of the result. Public scrutiny of these numbers is essential. Candidates, their supporters and scrutineers should do well to keep records of those numbers. Candidates should then be able obtain and collate those figures and in the event that they are unsuccessful and file an election petition, they should be in a position to plead those figures in the petition and demonstrate how the result of the election was affected or is likely to be affected. It is therefore critical for the survival of an election petition from judicial scrutiny under, s 210 for a petitioner who raises grounds in a petition under s 215 (3) and s 218 to plead the essential facts in figures to demonstrate how the result of the election was affected or is likely to have been affected by those illegal practises, errors, omissions and irregularities.
25. In exceptional cases, the result of an election being affected or likely to be affected may be determined primarily by reference to conduct that may bring into question the integrity of the entire election process for a particular electorate, in which case reference to specific vote numbers affected may be undesirable. For instance, electoral officers commit systemic and gross errors, omissions and irregularities that raise serious questions concerning the integrity of substantial number of votes cast at an election: Maino v Avei (2002) SC 633. Even then the number of votes affected that are vitiated by those errors and omissions or irregularities should be pleaded to demonstrate that the whole or substantial number of eligible voters or votes for an electorate were vitiated by those errors such that the entire election for that particular electorate was not genuine. It would be extremely difficult for anyone to speak in terms of the result of an election been affected without any reference to numbers of eligible voters or votes at all.
26. The need to plead the essential facts alongside the ground relied upon to invalidate the election for purpose of complying with s 208 (a) is imperative. That is particularly so with pleadings concerning illegal practices, errors and omissions and irregularities that come under s.215 (3) and s 218. Mere pleading of facts that constitute breach of provisions defining illegal practices, errors and omissions or irregularities; or even breaches of the Constitution, s 50, without pleading essential facts to show how the result of the election is affected or likely to be affected, does not satisfy the requirements of s208(a). Similarly, mere recitation of the requirements of a statutory provision and a breach thereof without the necessary or essential facts to support that statement of law will also not suffice under s 208 (a). The primary function of the Court of Disputed Returns is to determine if the result of the election was affected or is likely to have been affected by those breaches in terms of eligible voter or vote numbers; it is not a forum for registering grievances or complaints over breaches of electoral laws. The appropriate forum for that is provided elsewhere by law. For example, s 57 of the Constitution for breach or threatened breach of s 50 right, the Courts of law to enforce breaches of penal laws, the Electoral Commission itself to remedy breaches administratively or the National Court exercising its review jurisdiction for breaches of statutory duty on the part of the Electoral Commission.
27. The Second, Third and Fourth Respondents object to the competency of the petition in that it fails to satisfy the requirements of s 208 (a).
28. The grounds in the petition appear under following the headings:
. Ground (1) Irregular 2012 Common Roll
. Ground (2) Errors and omissions on the Common Roll
29. I begin my deliberations by considering together grounds in the petition that raise common issues. The first is whether Grounds 1, 2, 3 and 4 of the petition are precluded from being raised before this Court by reason of s 214 (see Schedule for this Section).
30. The allegations are that the figures for registered voters in the 2012 Common Roll were inflated from the figures for the Common Roll for two previous elections (2002 and 2007).
31. It is submitted for the Respondents that because the facts pleaded under those grounds raise issues concerning the correctness of the Common Roll used for the electorate; they are beyond the reach of this Court jurisdiction by virtue of s 214 and should be ruled incompetent.
32. It is argued for the Petitioner that those pleadings raise matters concerning whether the people were given a fair opportunity to exercise their right to vote guaranteed by Constitution, s.50 under a flawed Common Roll. Such an inquiry is permissible under the first part of s 214. The petitioner is not questioning the accuracy of the Common Roll: see John Wemin Mili v Simon Philip Gaima and Electoral Commission [1997] PNGLR 645 at 649. The Court would be too rigid and technical in its approach if these grounds were struck out as offending s 214 in the face of the provisions in s.217 and s222: Nomane v Ango (No. 2) (2003) N 2384 (see Schedule for these Sections).
33. It is submitted in response for the Respondents that s 214 is a clear prohibition. A petition is not the correct means by which deficiencies in a Common Roll are addressed by the Court. There are administrative processes provided in OLNE such as s 48, to correct inaccuracies in a Common Roll. If a person is still dissatisfied will the correctness of the Common Roll as having deprived him of the exercise of his or her right to vote guaranteed by Constitution, s 50, the remedy lies in 57 or 58 of the Constitution.
34. I accept submissions of counsel for the Respondents. In my view, s 214 is clear and expressed in mandatory terms. It means what it says. The provision is plain and clear in its expression and meaning. There is no room for the Court to engage in any construction exercise applying the fair and liberal rule of construction the Constitution itself provides for construction of Constitutional Laws. I do not see how the National Court exercising its statutory interpretive function could interpret this provision to give itself the power to deal with any matters concerning the accuracy or correctness of a Common Roll in an election petition matter.
35. I am satisfied that these four grounds in the petition and the facts pleaded in support thereof raise matters concerning the correctness of the 2012 Common Roll used in the electorate for different reasons. The issue decided in the case cited (Mili v Gaima & Electoral Commission) was different in that the use of a Common Roll that double listed electors which led to double voting by persons whose names appeared twice was in issue. That prompted the need for the Court to inquire into how many times those persons voted, an inquiry permitted by the first part of s.214. No such matters have been raised in respect of these four grounds.
36. I adopt and apply the principles set out in paragraph 27 hereof in reaching this conclusion. The forum and redress for correcting mistakes in a Common Roll lies elsewhere and not before the Court of Disputed Returns through an election petition.
37. I am satisfied that the essential facts, in terms of the number of eligible voters affected, though pleaded, do not disclose a clear case of voters in sufficient numbers measured against the total voting population for the electorate that are involved, that affected the result of the election. Figures have been thrown into the pleading basket with no clear picture emerging as to how those voter numbers affected or were likely to affect the election result. The Court has great difficulty in understanding these figures in the scheme of the election result. In reaching this conclusion, I apply my observations appearing in paragraphs 24 – 27 hereof.
38. For the foregoing reasons, Petition grounds 1, 2, 3 and 4 are struck out.
39. Ground 5 of the petition raises the issue whether the Electoral Commission erred in accepting the nomination of the First Respondent, Japheth John Yano and Andrew Rema, as candidates for election for the Kagua-Erave Open Electorate, when their names were not registered on the Common Roll. With regard to the First Respondent, it is not contended that he was entitled to nominate for the electorate in question because he was born in that electorate: see Ground 5.8 of the Petition. However because he failed to register himself on the Common Roll, he was not qualified to nominate.
40. I accept submissions of counsel for the respondents that the answer to the issue is supplied by OLNE, s 64(2). That provision was introduced by an amendment in 2006 to address the very same point. It seems many people, some lawyers and Judges included, seem to be unaware of this amendment and pleadings of the type in this petition have kept recurring. This provision is reproduced in the Schedule hereto. It says a person who is entitled to nominate for an electorate but whose name is not registered on the Common Roll, is, upon acceptance of his nomination as a candidate, "deemed to be on the Roll and shall so nominate and vote in the election." The person's candidature is not voided by reason of his non-registration on the Common Roll.
41. Ground 4 also contains some factual pleadings on the use of an incorrect Common Roll. I apply the same reasoning I have given earlier with regard to Grounds 1, 2, 3and 4 and strike out those factual allegations.
42. Further it is not demonstrated clearly and concisely how the result of the election was affected or likely to be affected by those illegal practices, errors and omissions referred to in that ground, by reference to number of eligible voters or votes not cast in the election. This ground is struck out for this additional reason.
43. The end result is that petition Ground 5 is struck out in its entirety.
44. The essence of Ground 6 is that there occurred a breach of OLNE, s50(1), as a result of which the production of an incorrect Common Roll denied the people their voting right.
45. It follows from my reasoning in relation to Grounds 1, 2, 3, 4 and 5 of the petition that the correctness of the Common Roll cannot be inquired into.
46. Further, it is not pleaded how the result of the election was likely to be affected by that error or omission. I accept submissions for the Respondents on this point and strike out this ground for this additional reason.
47. Ground 7 of the petition contains two grounds for invalidating the election. The first is hijacking of polling at named polling places. The second is ballot boxes from those polling places illegally marked by the First Respondent's supporters, with the assistance of or in collusion with the Presiding Officers and the Assistant Returning Officer. Some of those Presiding Officers were appointed selectively by the Returning Officer who is related to the First Respondent by marriage and workplace relations. In some instances, presiding officers refused to sign ballot papers from which the petitioner was expected to score votes, thereby rendering them informal. Some 453 votes belonging to the petitioner were rendered informal at the count for that reason.
48. Ground 7 also contains allegations that the electors did not get to cast their votes because electoral officers prevented them; or that supporters of another candidate hijacked the ballot boxes in respect of several polling places. The Electoral Commission failed in its duty to provide adequate security to prevent these illegal practices from occurring.
49. It is alleged that at the scrutiny, ballot boxes containing first preference votes (1,191) belonging to the petitioner were burnt by security officers on the instruction of the Retuning Officer. In the end, the election was unfair and breached of s.50 of the Constitution.
50. The Respondents contend that the facts pleaded under Ground 7 fail to comply with s 208 (a) for two reasons. First the grounds relied upon (Hijacking of polling and compromise by Presiding Officers) is not a permissible ground on which an election may be invalidated. Secondly, the factual pleadings under that ground do not comply with s 208(a).
51. In my view, the allegation concerning illegal practices appear to be serious. However it is necessary to plead essential facts in terms of the number of eligible voters involved and number of votes cast that were contained in those ballot boxes that were affected which in was likely to or did affect the election result. Given the substantial vote number difference between the Petitioner and the First Respondent, it is necessary to plead the facts in terms of the votes in figures that are affected by these illegal practises. A total of some 2,269 ballot votes or potentials votes are accounted for in the pleadings (625 in paragraph 7.5; 1,191 votes in paragraph 7.6 and 453 votes in paragraph 7.7). No other figures are pleaded alongside the ballot boxes that were destroyed. This total number of votes (2,269) is well below the differences in votes between the Petitioner and the First Respondent (15,047 votes). In the circumstances, I accept the Respondents' submissions that the facts necessary to demonstrate how the result of the election is likely to be affected has not been shown. For this reason, I strike out Ground 7.
52. Ground 8 relates to the Returning Officer's decision to reject 19 or so disputed boxes for some 19 polling places containing an unspecified number of ballot papers. They were disputed by the Petitioner's scrutineers and scrutineers of other candidates on various grounds. Those grounds were that the election process in those polling places were hijacked and the ballot papers were either not deliberately signed by Presiding Officers or were filled by in favour of the First Respondent by presiding officers with the assistance of the supporters of the First Respondent. When the scrutineers gave those reasons, the Returning Officer did not consider those reasons, and with the assistance of security personnel shouted them down and ordered the boxes be counted.
53. It is apparent from the factual pleadings in Ground 8 that ballot papers from the disputed boxes were counted. Scrutineers should have kept records of the total ballot papers from those disputed boxes and votes scored by each candidate at the count and provide that information to the Petitioner. With those figures at hand, the petitioner should then be in a position to demonstrate in the petition how the result of the election was affected or is likely to be affected. The only reference in Ground 8 in relation to the number of votes affected is in ground 8.6 and 8.7 where a total of 496 votes are accounted for. This figure is far below the votes difference between the Petitioner and the First Respondent. For this reason, I accept submissions of counsel for the Respondents that the Petitioner has failed to plead essential facts demonstrating how the result of the election was affected or likely to be affected. I strike out ground 8 of the petition as offending s.208 (a).
54. Ground 9 of the petition contains allegations of facts as to the appointment of two named Assistant Returning Officers for two named polling places who were related to the First Respondent by marriage or work place relations respectively and such decision compromised the integrity of the election process. These factual allegations relate to concern errors or omissions.
55. There are no facts pleaded showing those errors and omissions that were committed by the two officials in terms of the preparation for polling, conduct of polling and scrutiny of votes from these two polling places; and how their actions procured a particular outcome of the election result that favoured the First Respondent. Further, the number of votes from those polling places under the responsibility of those two polling officers have not been pleaded to demonstrate how the result of the election was affected or likely to be affected. It is for those reasons that I accept the submissions of counsel for the Respondents that the pleadings offend s. 208 (a) in conjunction with s 218. I strike out ground 9.
56. Ground 10 of the petition relates to errors, omissions and irregularities. It relates to the conduct of polling for Erave Rural LLG's and the scrutiny of votes from that area by a named Assistant District Administrator for Erave when he was not duly appointed. It is not stated how many votes that came under his responsibility were affected and how those votes affected or were likely to affect the result of the election. Given the substantial difference in votes between the Petitioner and the First Respondent it is hard to say if the election result was affected or likely to be affected by those errors and omissions even if they occurred. For those reasons, this ground 10 is struck out.
57. Ground 11 concerns bribery committed by the First Respondents on 22 June 2012 and 18 July 2012. It is necessary to set out the main factual allegations regarding this ground which appear in paragraphs 11. 1 – 11. 3, as follows:
"11.1 It is alleged that the first respondent bribed the presiding officers from Aiya Rural LLG to entice them the presiding officers to cast their ballot or mark other people's ballots in his favour.
11.2 On or about 22 June 2012 immediately prior to the polling, the First Respondent or his family members killed a pig for, among others, the presiding officers appointed to conduct polling in Aiya Rural LLG. He shared pork pieces among the election officials and gave K500 each to each of the presiding officers and promised further K5,000 each in Mendi should he win the 2012 elections. The following presiding officers and the polling centres at which they conducted the polling are as follows:
Mr Martin Yomo for Usa Polling center
Mr Felix Dulupia for Sumi Polling Center
Mr Mark Aiyapi as Assistant Presiding Officer for Wasuma Polling center.
11.3 On or about 18 July 2012 the date when the First Respondent was declared returned as duly elected Member for Kagua Erave Open Electorate he presented K10,000.00 cash to the electoral officials and K5,000.00 to the security personnel at Momei Oval in Mendi, Southern Highlands Province. The First Respondent owed no moral or legal obligation pay out K15,000.00 to the officials who had merely conducted their paid duties. It is irregular, improper and highly suspicious and the First Respondent brought the integrity and independence of the electoral process into question. The first respondent's action adds support to the allegation that he did promise to pay monies to the presiding officers in Mendi should (he) be returned and declared duly elected as Member for the Electorate."
58. The Second, Third and Fourth Respondents, supported by the First Respondent, objected to the competency of this ground and facts pleaded therein saying the Petitioner failed to plead specifically that illegal practices were committed; fails to plead if the persons bribed were electors; pleaded evidence and not facts; fail to plead the names of the witnesses who witnessed the bribery; is duplicitous with petition paragraph /ground 4.24; and fails to explicitly plead whether the result of the election was o affected or likely to be affected as required by s 215 (3).
59. Counsel for the petitioner submits the essential facts that support all the elements of the offence of bribery have been pleaded. Bribery is an illegal practice and it is pleaded as a ground. Also sufficiently pleaded are the name of the person who bribed, the names of the persons bribed, the purpose for which the money was paid, the date and place the acts of bribery were committed and the breach of s 103 of the Criminal Code. The pleadings adequately satisfy the requirements of s 208 (a) and s 215 (1).
60. I find that the reference in paragraphs 11.1 – 11.3 of the petition to the First Respondents' family members assisting in staging the feast and payment made to security officers, are not accompanied by any other essential facts. For that reason, I disregard those factual matters. As I intimated to counsel during argument, the focus of this ground is bribery committed by the winning candidate himself, within the meaning of Criminal Code, s 103 (a)(i) or (iii); and within the terms of OLNE, s 215(1) (bribery committed by winning candidate).
61. Under s 215 (1), if bribery is established or is proven at the trial, that in itself may render the election void. Bribery is an illegal practice and the offence is found in s 103 of the Criminal Code.
62. Under s 103 (a) (i) & (iii), essential facts pertaining to each element of the offence of bribery must be pleaded and those are; the identity of the person by name that made the payment; the identity of the person by name who is bribed, the form and value of the property or amount of money and the purpose of the payment. In a case where the person bribed is an elector, that must be expressly pleaded. To complete the facts, it is also necessary to plead the date and the place of payment even though they are not elements of the offence. There is abundance of case law on the need to plead these essential facts.
63. There was an important and new point of law that emerged during argument and a considerable amount of argument time was spent on it. It is the question whether s 103 is limited to bribery of electors or it also includes bribery of electoral officials. It is the common position of the parties in the petition that bribery of a named electoral official committed by a person winning candidate comes with the definition of bribery under s 102 (a) (iii) of the Criminal Code. The bribery cases that the Court has been dealing with in the past involve bribery of electors. Bribery of electoral officers is a new situation that may require more thought as to whether it comes under s 103(a) (iii). It seems to me the point was not fully thought through by counsel and positions taken by counsel at the bar table is understood in that light.
64. On the face of s 103 (a)(iii), bribery of a person, who is an electoral officer, comes within the terms of the expression "A person who ...gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person any property or benefit of any kind...in order to induce any person to endeavour to procure the return of any person at an election " in s 103 (a) (iii): see Schedule for s 103 in full). That said, it is open for the parties to fully address the meaning of this provision at the trial. For present purposes, on the face of the provision, I am satisfied that the situation comes within the terms of s 103 (a)(iii).
65. There was a an alternative pleading that these electoral officers were also bribed in their capacity as electors, a situation falling under s 103 (a)(ii) and under the second part of s 103 (a)(iii). This point was not pursued at the hearing. In any case, essential facts to support this ground have not been pleaded. In the circumstances, I would have to disregard this part of the pleading.
66. In terms of the facts relating to the result of the election, there is no requirement in s 215 (1) that the result of the election must be affected or likely to be affected by an act of bribery committed by the winning candidate.
67. There is a requirement to plead the names of the person who were offered or paid the bribe and the person who was paid the bribe. There are general, vague and imprecise references to these electoral officers from Aiya Rural LLG who were offered and paid the bribe. Such references appear throughout Ground 11 and those include references such as "officers", "Presiding Officers", "Assistant Presiding Officer", "named presiding officers" and "each presiding officer". We all know that whilst there is only one returning officer for an electorate, there are a few to several Assistant Returning Officers and many more Presiding officers because there are many polling places throughout the electorate. All the names of the Presiding Officers who attended the gathering and received K500 each have not been pleaded. The only names pleaded with certainty appear in paragraph 11.2, but even then it is not clear if these three named officers were amongst the Presiding Officers who were present at the gathering and received K500 each. The same can be said of those electoral officers who were paid K10,000 on the 18th of July. The pleading of those essential facts are vague and imprecise.
68. Election and election disputes that end up in Court is serious business. Allegation of bribery is amongst the most serious of electoral offences. That is reflected in s 215 (1) whereby a finding that an act of bribery was committed by the winning candidate of itself, regardless of the value of the property or amount of money involved, and regardless of the number of persons bribed, will suffice to invalidate the entire election for an electorate. Furthermore, allegations of bribery of electoral officials, whether registered electors or not, is even more serious because allegations of improper and unlawful conduct is levelled against the very persons who are entrusted to run the election. It is for this reason that allegations of fact concerning bribery pleaded in a petition of the kind pleaded in this petition must strictly conform to the requirements of s 208 (a) and s 103 of the Criminal Code, by pleading the essential facts that support the elements of the offence of bribery. Bribery is a criminal offence for which the penal law attaches criminal responsibility to named individual persons who commits bribery and the person who is bribed. Pleading the name of the person who committed the bribery and the name of the person bribed is the first and most essential of those requirements. It is s practical common sense to state the name of the individual person that promised or paid the bribery and the person to whom the promise or payment was made to. Any ordinary person filing an election petition raising bribery as a ground to overturn the election will know the importance of pleading in the Petition the name of the person who is bribed.
69. I consider the petitioner's inability in Ground 11 to state, by name of all these electoral officers who gathered at the First Respondent's house and received K500 each, the failure to disclose if Mr Martin Yomo, Mr Felix Dulupia and Mr Mark Aiyapi were present at that gathering and received their share of K500, the failure to disclose the names of the presiding officers that received the K10,000 in Mendi on 18 July 2012 and failure to disclose if the three named electoral officers were amongst those who received the K10,000, could become fatal omissions if one were to adopt the strict scrutiny approach.
70. That said, applying the third test approach to judicial scrutiny I enunciated earlier, when I read the whole of the paragraphs under Ground 11, it is not difficult to deduce from those facts that the three electoral officers whose names are mentioned were amongst those electoral officials that attended the gathering on 22 June, received K500 each from the First Respondent, were present and heard of the promise to pay them another K5,000.00 if he won the election; and, were among the electoral officers who were paid K10,000.00 on 19 July 2012. It is the allegation of bribery of these three electoral officials, and no other unnamed electoral officials, that I find, satisfy the requirements of OLNE, s 208 (a) read in conjunction with OLNE, s 215 (1) and s 103 (a)(iii) of the Criminal Code . This ground with factual pleadings limited to those three named persons as recipients of the bribery will proceed to trial.
71. The last ground, ground 12 relates to illegal practises. It is closely connected to the Ground 5 of the petition. For the same reasons I gave in relation to the striking out Ground 5, I strike out ground 12.
72. It follows that all grounds in the petition are struck out except Ground 11.
73. The Court orders as follows:
74. The five grounds in the petition relate to illegal practices, errors and omissions that come under s 215(3) and s 218 . Those are as follows:
. Ground (1) - Failure to display Common Roll for public inspection.
. Ground (2) – Unauthorised persons conduct of polling and scrutiny.
. Ground (3) – Irregular 2012 Common Roll.
. Ground (4)- Hijack of polling and compromise of Presiding Officers.
. Ground (5) – Counting of disputed ballot boxes.
75. The grounds of objection relate to the failure to plead essential facts to support those grounds under s208 (a), pleading matters concerning the correctness of the Common Roll against express prohibition in s 214 and failure to provide complete address and occupation of the two attesting witnesses under s 208 (d).
76. Extensive submissions, oral and written, were made before me. My consideration of these submissions are embodied in my reasoning.
77. I deal with Grounds 1 and 3 of the petition first. Similar argument made in EP 20 of 2012 in respect of the application of s 214 were made in this case. It was further argued for the petitioner that s 214 is not a proper competency ground because it does not raise a competency issue which goes to the question of jurisdiction.
78. In my view, although s 214 is not part of the formal requirements of a petition referred to in s 208, s 209 and s 210, it is a provision that ousts the Court's power to consider questions concerning the correctness of the Common Roll. It is within this Court's inherent discretionary jurisdiction to decline exercise of jurisdiction over matters that it is not possessed of jurisdiction. For this reason, I adopt the same reasoning in EP 20/12 with regard to s 214 and dismiss Grounds 1 and 3 of this petition. .
79. Grounds 1 and 3 were also challenged for the reason that essential facts showing how the result of the election was likely to be affected is wanting in those grounds. The petition pleads that the First Respondent won the election with 19,043 votes followed by the petitioner running second with 14,929 votes. Although the winning margin between them is not pleaded, as submitted by the Respondents, that figure can be deduced from those figures, at 4,114 votes.
80. For the same reason reasons I gave in EP 20 of 2012 in relation to the failure to plead pertinent facts in the number of votes affected showing how the result of the election was affected under s 218, Grounds 1 is struck out.
81. In ground 3, some 2,552 votes are affected. That figure is below the winning margin between the Petitioner and the First Respondent. The petitioner has failed to demonstrate how the election result was likely to be affected by those number of votes to warrant a trial on those facts. This ground is also struck out.
82. Petition Ground 2 contains a combination of facts relating to illegal practices and errors and omissions on the part of electoral officers. I adopt the same reasoning that appear in paragraphs 24-27 hereof. This Ground fails to plead the number of votes affected by the illegal practices, errors or omissions that affected or is likely to affect the result of the election. Ground 2 merely states the illegal practices or errors and omission that were committed but not how they affected the result of the election in terms of the number of eligible voters or votes cast and assigned to candidates at the counting to produce a win that favoured the First Respondent. This ground is struck out for this reason.
83. Ground 4 concerns illegal practices. It is pleaded that as a result of the hijacking of voting in four Wards, the involvement of the Assistant District Manager in that act and the failure by the Electoral Commission to secure the election process in those areas, the petitioner was deprived of some 2,552 votes from Karanda 1, Karanda 2 and Koya Wards.
84. I find that the petitioner fails to plead sufficient essential facts showing how the result of the election was affected or likely to be affected. Given that the 2,552 votes is below the winning vote margin between the petitioner and the First Respondent, and the failure to plead sufficient facts in vote figures as required by s 215 (3) and s 218, this ground is struck out.
85. The same can be said of Ground 5 of the petition. No figures are provided to show the number of ballot papers in those disputed ballot boxes that were counted that affected the result of the election. The petitioner's scrutineers, if they did their job well, should have kept records of the number of votes in those ballot boxes and supplied them to the petitioner to plead in the petition. The facts as pleaded merely plead a breach of OLNE, s 153A (and s 50 of the Constitution), without demonstrating how the election result was affected or likely to be affected in terms of the number of votes involved. Applying the principles set out in paragraph 28 hereof, and applying the same reasoning I have given in relation to Grounds 1, 2, 3 and 4, Ground 5 is struck out.
86. The end result is that the petition is left without any grounds and facts supporting these grounds. The entire petition is struck out for failing to comply with s 208 (a) in conjunction with s 215 (3) and s 218; and also under s 214.
87. An alternative ground of challenge is that the attesting witnesses did not provide their full addresses and occupations, thereby failing to comply with, s208(d). This provision requires the petitioner to ensure that the petition is attested by two witnesses whose names, addresses, occupations and their signatures are stated or inserted in the petition. One of the main purposes of these requirements is to enable them to be easily located and identified by the Respondents or any person interested in confirming the authenticity of the petition. This principle is established by case law and is not in question in these proceedings: Agonia v Karo [1992] PNGLR 463, Karo v Kidu [1997] PNGLR 28.
88. There was some confusion over whether the Respondents who filed separate notices of objection took issue with the attestation by both witnesses. At the hearing, the First Respondent settled for one witness only, that is in respect of the witness Nick Nani. The second, third and fourth Respondents supported the First Respondent without insisting on inclusion of the second witness. In the circumstances, I find that the objection is in respect of Nick Nani only.
89. In the petition Nick Nani's residential address is stated as ''Sec 47 Lot 24'', without stating the location. His postal address is stated as ' P.O Box 7946'' without stating the name of the Post Office. His occupation is stated as "clerk", without stating what type of clerical work he is employed for, his employer or his place of work.
90. It was conceded on behalf of the petitioner that the addresses are incomplete. His occupation it is submitted is sufficient. I am urged by counsel for the petitioner to adopt a liberal approach in scrutinizing these information by accepting the essence and substance of the matters pleaded and avoid matters of form and technicality, to find that the name and his signature together with his address and occupation is sufficient compliance with s 208 (d).
91. I have given careful thought to the possible justifications for dismissing an entire petition for a small reason to do with the provision of an incomplete address and a general description of the occupation of an attesting witness. Applying the third approach to judicial scrutiny that I enunciated earlier, t o these sorts of matters, and even applying the liberal approach that is most favourable to the petitioner,, the information appearing under the attestation clause (name, address and occupation) taken it its entirety still begs the question: Where would someone looking to confirm the authenticity of the petition and looking for Nick Nani locate and or find him on the address and occupation provided in the petition. Ample case law has developed that have been cited to me by counsel for the respondents that say that pleading of witnesses' address and occupation in this way fail to comply with the mandatory requirements of s 208 (d). The weight of case authority on the purpose of stating the witnesses' occupation and occupation in sufficient detail to enable the witness to be located and identified is overwhelming. So too is the mandatory wording of s 208 (d). For those reasons, I am satisfied that the petition fails to comply fully with the requirements of S.208 (d) and strike out the petition for this additional reason.
92. The Court Orders:
93. At the commencement of the trial the petitioner withdrew seven (7) of the eight (8) grounds of the petition, leaving only one ground, Ground 7 (Bribery), to be pursued. I reproduce Ground 7 which is in the following terms:
"7.1 It is alleged that the First Respondent and his associate, the ARO for Aiya LLG Mr Bernard Kambe bribed the presiding officers from Aiya Rural LLG to entice them to cast their ballot or mark other people's ballot in favour of the first respondent.
7.2 On or about 19 or 20 June 2012 after dusk Mr Bernard Kambe gathered 24 presiding officers from Aiya LLG at Uma Catholic Church premises. There at the church premises Mr Kambe gave K500 each to all presiding officers and told them to mark first and second preference ballots in favour of the First Respondent during polling at their respective polling centers. Present at the church premise among the presiding officers were Martin Yomo, presiding officer for Usa poling center, Samson Akane presiding officer for Puti polling center, Anthony Maya presiding officer for Rakuare Lagira polling center and Willy Ates, assistant presiding officer for Puti.
7.3 On 22 June2012 at about 5:00pm at Muniputi the First Respondent took to the grand stand built for his campaign and told the same presiding officers gathered there that he had already given them K500 each. The first respondent then promised to give K5,000.00 each to all presiding officers on Monday 25 June 2012 provided they marked ballots in his favour at their respective polling centers and that the ballots boxes arrived safely in Mendi.
7.4 At night on 22 June the same presiding officers and Mr Bernard Kambe stayed at a Max Ropolo's place, a relative of the first respondent. Mr Ropolo had slaughtered two pigs for the presiding officers and Mr Kambe. Between 9:00pm and 10:00 pm they shared the pork and had their meal and Mr Kambe instructed the presiding officers that the next day 23 June 2012 they will conduct polling in selected 13 polling centers only. Polling will be conducted in the balance of the polling centers on the following day 24 June 2012. Mr Kambe advised each polling officer that it was hard work that they got the First Respondent elected to office in 2007 and they must now cooperate to vote him back to office. That night they all slept in Mr Ropolo's house. The next two days polling was conducted in accordance with the plan.
7.5 On or about 18 July 2012 the date when the First Respondent was declared as duly elected he presented K10,000.00 cash to the counting officials and K5,000.00 to the security personnel at Momei Oval in Mendi, Southern Highlands Province.
7.6 For the purpose of Section 103 of the Criminal Code:
(i) Mr Kambe and or the First Respondent did on or about 20 June 2012 in the afternoon at the Catholic Church premises at Uma village did give K500.00 each to the presiding officers Messers Martin Yomo, Samson Akane, Anthony Maya,Willy Atesi on account of each presiding officer casting their votes to him and or complying with his direction to each of them to mark other electors' ballot papers in his favour in the respective polling centers each were to preside at in order to ensure his return, thereby breaching Section 103(a)(i) of the Criminal Code Act 1974; and or
(ii) alternatively, Mr. Kambe and or the First Respondent did on or about 19 or 20 June 2012 in the afternoon at the Catholic Church premises at Uma village did give K500.00 each to the presiding officers in order to induce each of them to cast their votes in favour of the First Respondent and or to mark other electors' ballots in his favour to endeavour to procure his return at the election thereby breaching Section 103(a)(iii) of the Criminal Code Act 1974; and
(iii) the First Respondent did on 22 June 2012at about 5:00pm in Muniputi(in) Aiya Rural LLG did promise to pay on Monday 25 June 2012 K5,000.00 each to all presiding officers including the said officers on account of the presiding officers ensuring that all ballot boxes in Aiya LLG arrive safe in Mendi and he gets returned and elected thus breaching Section 103(a)(i) of the Criminal Code, and or
(iv) alternatively, the First Respondent did promise to give K5,000.00 each to all presiding officers including the named four officers in order to induce each of them to the safe transfer of ballot boxes to Mendi and get him returned and elected thereby breaching Section 103(a)(iii) of the Criminal Code Act 1974; and
(v) the First Respondent, when he was returned and elected, did, at about 14:00 on 18 July 2012 at Momei Oval in Mendi pay K10,000.00 to the counting officials from Aiya LLG and K5,000.00 to the security personnel thus fulfilling his promise to pay to the presiding officers in the Aiya Rural LLG on the account of the presiding officers ensuring the safe transport of ballot boxes from Aiya LLG to Mendi and he got returned and elected, thereby breaching section 103(a)(i)of the Criminal Code.
7.7 For the purposes of Section 215 (1) of the Organic Law:
(i) the First Respondent ought not to have been duly returned as been re-elected to the National parliament and the election should be declared void because he has committed bribery within the meaning of Section 103 (a)(i) and (iii) of the Criminal Code Act 1974; and
(ii) pursuant to Section 215 (3)(b) of the Organic Law it is just that the court should declare the First Respondent not to be duly elected and or the election should be declared void on account of the First Respondent's conduct of bribery."
94. The 2nd,3rd and 4th Respondents filed an objection to the competency of all grounds of the petition, but all accept one ground of objection contained in paragraph "H" were rendered obsolete as a result of the withdrawal of seven grounds of the petition.
95. Parties made extensive submission, written and oral, on whether the facts supported the offence of bribery under s 103 (a)(i) or (iii) of the Criminal Code, and whether the pertinent facts supporting all the elements of bribery were pleaded. My consideration of those submissions is embodied in my reasoning.
96. I accept the Petitioner's submission that the facts pleaded in each of the seven sub-paragraphs of paragraph 7 should be read and understood as a whole, because they are inter-related and form a series of events that occurred during the polling period culminating in the events of the day the declaration of the election result was made. I reject submissions of counsel for the Respondents that the payments made on 12 July 2012 is outside the election period and as such it is irrelevant.
97. I accept the Respondents' submission that ground 7 contains a lot of alternative pleadings as to dates, persons involved and provisions of the Criminal Code and OLNE relied upon.
98. My reading of this ground confirms alterative pleadings of facts and the grounds, some of which are imprecise and generalizations, in a number of areas including the following:
(1) It is pleaded the First Respondent (winning candidate) acted in concert with his associate, the ARO for Aiya LLG Mr Bernard Kambe, in bribing presiding officers from Aiya LLG. On the other hand, only his associate made the first payment to Presiding Officers. Then in paragraph 7.6 (i) & (ii), there is an the alternative pleading in the expression "Mr Kambe and or the First Respondent".
(2) It is not pleaded if Mr Bernard Kambe himself was bribed.
(3) The First Respondent and his associate bribed presiding officers to either cast their own votes for the First Respondent or mark other people's ballots in favour of the First Respondent.
(4) The dates 19th or 20th June is expressed in the alternative.
(5) The opening statement says Presiding Officers were bribed, but later in 7.2, Assistant Presiding Officer for Puti is also mentioned.
(6) The Presiding Officers were bribed on or about 19 or 20 June 2012 and they were promised K5,000 each on 22 June 2012; however on 18 July 2012, "counting officials" were paid K10,,000.00 in cash.
(7) Paragraph 7.6 contains a summary of the facts as they relate to acts of bribery under s.103 (a) (i) or (iii). They are expressed in the alternative.
99. On a close examination of these factual pleadings, it is not pleaded the names of the Presiding Officers or Counting Officials that received money directly from the First Respondent. The pleading in paragraph 7.2 is that Mr Kambe paid K500 to all 24 presiding officers for Aiya LLG. It is not pleaded if Mr Martin Yomo, Mr Samson Akane and Mr Anthony Maya who were present at the gathering did receive K500 each. These four Presiding Officers are among those who received K500 each from Mr Kambe, but in the alterative pleading in paragraph 7.6 (i) & (ii), the pleading is that they were paid the money by "Mr Kambe and or the First Respondent."
100. These and other alternative pleadings create confusion and make the Court's task and that of counsel in addressing the petition difficult. That is the precise reason why such alternative pleadings in an election is not permitted: Kopaol v Embel (2003) SC727. The decision referred to is binding on this Court.
101. The Petitioner realized these problems with the pleadings and in the course of argument and exchange with the Court, chose to rely on bribery committed by the First Respondent upon the named electoral officers under OLNE, s 215 (1) in conjunction with s 103 (a)(iii) of the Criminal Code. He argued that the essence or substance of the factual pleadings comply with OLNE, s 215 (1) and s 103 (a) (iii) of the Criminal Code, the end result being that OLNE, s208 (a) is complied with. Leaving aside the confusing part created by the alternative pleadings, the substance of the pleadings is intact and it should be allowed to go to trial.
102. Approaching ground 7 in the manner pressed upon by the Petitioner, there still remains lingering doubts over just who amongst the 24 presiding officers, by name, were paid the first K500 on 19th or 20th June, who by name was promised the next K5,000.00 payment, and who, by name, was paid the K1000.00 on 12 July 2012. Pleading the names of those bribed is not requiring evidence to be pleaded. It is a material and essential fact to plead in a petition in clear and concise language. The reason for that sort of pleading is the same as those I gave in EP 20 of 2012.
103. That much said, applying the third approach to judicial scrutiny that I enunciated earlier, reading petition ground 7 as a whole with a search for purpose and substance, it is not difficult to deduce from the factual pleadings contained therein, that Mr Bernard Kambe himself would have been bribed first by the First Respondent and then the four named electoral officials were bribed with K500 each. They were then promised a further K5,000.00 each if the First Respondent won the election. All five named electoral officers would have been part of the group of persons who were paid K10,000 on the day of the declaration of the election result. The activities and events set out under Ground 7 describe a series of connected events in the polling period up to the day of the declaration and they have to be read and understood in that way.
104. In the circumstances, I am satisfied that essential facts with regard to all the elements of the offence of bribery under s 103 (a)(iii) of the Criminal Code have been pleaded. I am satisfied that the pleadings comply with OLNE, s 208 (a) in conjunction s215(1) and s 103 (a)(iii) of the Criminal Code. A trial will proceed in respect of the bribery committed by the First Respondent upon the five named electoral officials only. Those electoral officers are presiding officers Messers Martin Yomo, Samson Akane, Anthony Maya and Willy Atesi and Assistant Returning Officer Mr Bernard Kambe.
105. The point of law whether s 103 (a) (iii) of the Criminal Code or OLNE, s 286 (1)(f) is the appropriate provision to bring an allegation of bribery involving electoral officials can be argued in full at the trial. As for now, for the reasons I gave in EP 20 of 2012, I am satisfied that s 103 (a)(iii) of the Criminal Code does cover bribery of the five (5) named polling officers.
Waisi Lawyers: Lawyer for the Petitioner in EP 20 of 2012
Mawa Lawyers: Lawyer for the Petitioner in EP 25 of 2012
Lawyer for the Petitioner in EP 35 of 2012: Petitioner in person
Sam Bonner Lawyer: Lawyer for the First Respondent in EP 20 of 2012
Kuman Lawyers: Lawyer for the First Respondent EP 25 of 2012
Sam Bonner Lawyers: Lawyer of the First Respondent in EP 35 of 2012
Niugini Legal Practice Lawyers: Lawyer for the Second, Third and Fourth Respondents in EP 20, 25 35 of 2012
SCHEDULE
ORGANIC LAW ON NATIONAL AND LOCAL LEVEL GOVRNMENT ELECTIONS
PART XVIII.—DISPUTED ELECTIONS, RETURNS, ETC.
Division 1.—Disputed Elections and Returns.
206. Method of disputing returns.
The validity of an election or return may be disputed by petition addressed to the National Court and not otherwise.
207. Jurisdiction of National Court exercisable by single Judge.
The jurisdiction of the National Court in relation to any matter under this Part may be exercise by a single Judge.
208. Requisites of petition.
A petition shall—
(a) set out the facts relied on to invalidate the election or return; and
(b) specify the relief to which the petitioner claims to be entitled; and
(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
(d) be attested by two witnesses whose occupations and addresses are stated; and
(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a).
209. Deposit as security for costs.
At the time of filing the petition the petitioner shall deposit with the Registrar of the National Court the sum of K5,000.00 as security for costs.
210. No proceedings unless requisites complied with.
Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.
211. Right of returning officer to be represented.
The Electoral Commission may, by leave of the National Court, enter an appearance in any proceedings in which the validity of an election or return is disputed, and be represented and heard in the proceedings, and in that case shall be deemed to be a party respondent to the petition.
212. Powers of court.
(1) In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things—
(a) adjourn; and
(b) compel the attendance of witnesses and the production of documents; and
(c) grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d) order a re-count of ballot-papers in an electorate; and
(e) examine witnesses on oath; and
(f) declare that a person who was returned as elected was not duly elected; and
(g) declare a candidate duly elected who was not returned as elected; and
(h) declare an election absolutely void; and
(i) dismiss or uphold a petition in whole or in part; and
(j) award costs; and
(k) punish contempt of its authority by fine or imprisonment.
(2) The Judges of the National Court may make rules of court with respect of pre-trial conferences and procedures relating to procedures under this Part.
(3) The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
(4) Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.
213. Production of postal vote certificate, etc.
(1) Without limiting the powers conferred by Section 212—
(a) when it is proved that a ballot-paper issued under Section 100, 141, 142 or 143 has, in an election, been marked by a person who was not entitled to vote at the election, the Court may require the production of—
(i) the postal vote certificate delivered to or posted to that person; or
(ii) any other papers or documents relating to the ballot-papers issued under those sections,
as the case may be; and
(b) the Court may reject a ballot-paper.
(2) The production from proper custody of a ballot-paper purporting to have been used in an election and bearing an official number, and of a postal vote certificate or other papers or documents referred to in Subsection (1)(a)(ii) an official number corresponding to the official number on the ballot-paper, is prima facie evidence that the person who marked the ballot-paper was the person to whom the postal vote certificate was delivered or posted or who made the declaration, as the case may be.
(3) In Subsection (2), "official number" means a number purporting to have been placed on the ballot-paper or postal vote certificate, as the case may be, under this Law.
214. Inquiries by Court.
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.
215. Voiding election for illegal practices.
(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.
216. Court to report, etc., cases of offences.
Where the National Court, in the trial of a Petition under this Part, finds that a person has committed an offence under this Law or any other law, the Registrar of the Court shall promptly—
(a) report the finding to—
(i) the Speaker; and
(ii) the Electoral Commission; and
(iii) the Public Prosecutor; and
(iv) the Commissioner of Police; and
(b) forward all papers relevant to the finding to the Commissioner of Police.
217. Real justice to be observed.
The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
218. Immaterial errors not to vitiate election.
(1) Subject to Subsection (2), 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.
(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.
219. Evidence that person not permitted to vote.
On the trial of a petition, the National Court shall not admit the evidence of a witness that he was not permitted to vote in an election during the hours of polling in the polling period unless the witness satisfied the Court—
(a) that he claimed to vote in the election, under that provision of this Law under which he was entitled or might be permitted to vote; and
(b) that he complied with the requirements of this Law relating to voting by electors in so far as he was permitted to do so.
220. Decision to be final.
A decision of the National Court is final and conclusive and without appeal, and shall not be questioned in any way.
221. Copies of petition and order of court to be sent to the Parliament.
The Registrar of the National Court shall promptly after the filing of a petition forward to the Clerk of the Parliament a copy of the petition, and after the trial of the petition shall promptly forward to the Clerk a copy of the order of the Court.
222. Counsel or solicitor.
(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.
223. Costs.
The National Court may award costs against an unsuccessful party to a petition.
224. Deposits applicable for costs.
If costs are awarded to a party against the petitioner, the deposit lodged under Section 209 is applicable in payment of the sum ordered, but otherwise the deposit shall be paid to the petitioner.
225. Other costs.
All other costs awarded by the National Court, including any balance above the deposit payable by the petitioner, are recoverable as if the order of the Court were a judgement of the National Court, and the order, certified by the Court, may be entered as a judgement of the National Court and enforced accordingly.
226. Effect of decision.
Effect shall be given to a decision of the National Court as follows:—
(a) if a person returned is declared not to have been duly elected, he shall cease to be a member; and
(b) if a person not returned is declared to have been duly elected, he may take his seat accordingly; and
(c) if an election is declared absolutely void a new election shall be held.
227. Definition of "petition".
In this Division, "petition" means a petition disputing an election or return.
__________________________________
64. Special provisions for certain nominations.
(1) Notwithstanding anything in this Law but subject to this section, where a person who is entitled to do so has nominated for an electorate other than the electorate for which he is enrolled:—
(a) the Returning Officer for the electorate for which he nominates shall place his name on the Roll for that electorate and notify the Returning Officer for the electorate for which he is enrolled who shall remove his name from the Roll for that electorate; and
(b) if the nomination is withdrawn, the Returning Officer for the electorate for which he was nominated shall remove his name from the Roll for that electorate and notify the Returning Officer for the other electorate who shall (unless he has in the meantime nominated for some other electorate) restore his name to the Roll for that other electorate; and
(c) if he fails to be elected, the Returning Officer for the electorate for which he was nominated shall remove his name from the Roll for that electorate and notify the Returning Officer for the other electorate who shall restore his name to the Roll for that other electorate; and
(d) if he is elected and later ceases to be the member for the electorate, the Returning Officer for the electorate for which he was the member shall remove his name from the Roll for that electorate and notify the Returning Officer for the other electorate who shall restore his name to the Roll for that other electorate unless he has ceased to be eligible for enrolment in that electorate and has been enrolled in another electorate.
(2) Where a person who is entitled to do so nominates for an electorate and his name is not already on a Roll for the electorate he nominates, on the acceptance of his nomination for the electorate, the person shall be deemed to be on the Roll and he shall so nominate and vote in the electorate.
PROVISIONS OF THE CRIMINAL CODE (CH 2612)
103.Bribery.
A person who—
(a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person any property or benefit of any kind—
(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or
(ii) on account of any person acting or joining in a procession during an election; or
(iii) in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election; or
(b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or
(c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or
(d) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or
(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or
(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or
(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale
of fermented or spirituous liquors,
is guilty of a misdemeanour.
Penalty : A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.
PacLII:
Copyright Policy
|
Disclaimers
|
Privacy Policy
|
Feedback
URL: http://www.paclii.org/pg/cases/PGNC/2013/121.html