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National Court of Papua New Guinea |
PAPUA NEW GUINEA
IN THE NATIONAL COURT OF JUSTICE
EP 49 OF 2012
IN THE MATTER OF SECTION 206 OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTION
AND:
IN THE MATTER OF A DISPUTED RETURN OF ELECTION RESULTS FOR THE MIDDLE RAMU OPEN ELECTORATE IN THE NATIONAL GENERAL ELECTIONS
BETWEEN:
BEN SEMRI
Petitioner
AND:
ADOLF DUANGHA, Returning Officer
First Respondent
AND:
ANDREW S. TRAWEN, THE CHIEF ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent
AND:
TOMMY TOMSCOLL
Third Respondent
Madang: Salika, DCJ
2013: 11th, 12th, 13th &14th February
ELECTION PETITION – Practice and Procedure – Objection to Competency – Requirement of s. 208(a) of Organic Law on National and Local-Level Government Election – Pleadings – Whether pleading sufficient – Whether pleadings satisfy requirement of s. 208(a) of Organic Law
Cases Cited
Holloway v Ivarato and another (1988) PNGLR 199
Agonia v Karo (1992) PNGLR 463
Mae v Genia (1992) N1105
Pawa v Nagle (1992) PNGLR 563
Kopaol v Embel (2003) SC 727
Sauk v Polye (2004) SC 769
Benias Peri v Nane Petrus Thomas and Andrew Trawen, Unnumbered and Unreported National Court decision of 20 April 2004
Amet v Yama (2010) SC 1064.
Sanagke v Gordon Wimb & ors (2012) Unreported and Unnumbered Judgment
Parkop v Vele (2007) N3320
Counsel:
F. Kuvi, for the Petitioner,
A. Kongri, for First & Second Respondents
B Meten, for Third Respondent
14th February, 2013
1. SALIKA, DCJ: BACKGROUND: The petitioner and the Third Respondent were both candidates for the Middle Ramu Open Electorate in the National Parliament. They were amongst 37 other candidates who contested the seat in the 2012 National Election.
2. The First Respondent was the Returning Officer for the Middle Ramu Open Electorate. He was charged by the Second Respondent to conduct the election in the electorate.
3. The Second Respondent is the Chief Electoral Commissioner and as such is responsible for the conduct of the election in the country.
4. The Petitioner was a former Member of Parliament for the Middle Ramu Open Electorate. At the time of the 2012 National Election he was the incumbent but lost to the Third Respondent at the 2012 National Election.
5. Following the National Election the Third Respondent was declared member for Middle Ramu Open Seat.
6. On 3 October 2012 the petitioner filed this petition challenging the third Respondent's election win. He drafted and filed the petition himself.
7. There are two sets of allegations raised by the petitioner. They are:
(i) Errors, omissions and or illegal and irregular practices committed by candidates and their agents and or servants; and
(ii) Errors, omission and or illegal and irregular practices committed by electoral officials and their servants and or agents.
8. The First and Second Respondents filed their Objection to Competency Notices on 8 October, 2012 while the Third Respondent filed his Objection to Competency Notice on 13 October, 2012.
FIRST AND SECOND RESPONDENTS OBJECTION TO COMPETENCY NOTICE
9. The summary of their Objection to Competency is that the petition does not plead sufficient material facts as required under s. 208(a) of the Organic Law on National and Local Level Government Elections (The Organic Law). They therefore argue that as the petition does not comply with the requirements of s.208 (a) of the Organic Law it is not competent. In relation to the correctness of the Common Roll, the First and Second Respondents argue that s. 214 of the Organic Law prohibits the Court from inquiring into the correctness of the common roll.
THIRD RESPONDENTS OBJECTION TO COMPETENCY NOTICE
10. The Third Respondent argues that the petition against him is incompetent because the pleadings fall short of the requirements of s. 208(a) of the Organic Law.
PETITIONER'S RESPONSE.
11. The petitioner in response submitted, through his lawyer, that sufficient facts have been pleaded consistent with the requirements of s. 208(a) of the Organic Law and that he should not be made to adduce evidence at the early stage of proceedings. He argued that what he has pleaded are facts within the meaning of s. 208(a) and not evidence.
12. He further argued that he filed his petition himself and as a layman he did what he could and that lawyers, who are not supposed to be appearing in Election Petition cases, are making it extremely difficult for lay petitioners like him to have their day in Court and are driving them out from the judgment seat and as a result justice is being miscarried.
ISSUES
13. Paragraphs 1 to 12 of the petition state the background to the petition and are not in dispute. Paragraphs 13, 14, 15 and 16 of the petition are in dispute as being either badly or insufficiently pleaded thereby rendering the petition invalid or incompetent.
14. The central issue therefore is whether paragraphs 13, 14, 15 and 16 of the petition are incompetent as being either badly or insufficiently pleaded, thereby rendering the petition invalid.
THE DISPUTED PLEADINGS
15. For a clear understanding of what is in dispute, I have decided to capture the disputed parts of the petition. They are as follows:
"13 The allegations or grounds upon which the Petitioner relies upon to bring this Petition are:
(a) Irregular conduct and illegal practices by "candidates" and their agents and/or associates; and
(b) Errors and/or omissions including illegal practices committed by electoral officials and/or agents and/or servants of the First and Second Respondents prior to and during the tenure of the elections of the Middle Ramu Open Electorate.
14 It is also alleged that after the commencement of the polling on the 24th of June 2012, for the Middle Ramu Open Electorate, and the declarations of the results on 20th of July 2012, the First and Second Respondents and/or their officers, agents and/or servants committed or engaged themselves in irregular and illegal acts and/or errors or omissions which had the effect of affecting the election results for the Middle Ramu Open Electorate contrary to Sections 215 and 218(1) of the Organic Law on National and Local Government Election. The particulars of these irregular and illegal practices and/or errors and omission are as follows:
B. PARTICULARS OF ERRORS, OMISSIONS, AND/OR ILLEGAL AND IRREGULAR PRACTICES COMMITTED BY CANDIDATES AN/OR THEIR AGENTS OR ASSOCIATES
(a) During the campaign period, supporters of the Third Respondent went around distributing cash and inducing voters to vote for the Third Respondent. Such instances include cash given to one NOAH ANJEM, the Chief Scrutineer of Candidate Jonny Annanias Alonk to buy second preference votes from Annanias Along's supporters;
(b) On the 27th of June 2012 during polling at Kairok Bris a Melting Awang (an Elementary School Teacher) and a Stanley Wieng marked all the ballot papers until heavy rain disrupted polling which then had to be moved from the original open area into an old empty store house.
(c) On the 28th of June 2012, before polling commenced at Fundum Ward 5 in the Simbai Local Level Government (LLG), several young men, who were supporters of the Third Respondent, demanded from everyone present at the time that they all must cast their votes in favour of the Third Respondent or else there would be trouble;
(d) Furthermore, these young men, referred to above in (c), demanded that since there were 660 eligible voters from Fundum, all ballot papers must be exhausted, regardless of whether or not these eligible voters were present. As a result people voted two, three, four and more times just to ensure that all 660 ballot papers were filled up and casted. These illegal activities were allowed by the electoral officials as well;
(e) Furthermore, under-aged and children were also forced to vote;
(f) On the 27th of June 2012, during polling at Kandum Simbai by Team 3 or Provincial Team 91, a Vincent Kuloi stationed himself at the polling compartment and casted all votes for all the voters that went in with their ballot papers. This was witnessed and apparently allowed by the electoral officials; and
(g) On the 2nd of July 2012, between 8:11 am and 1:43 pm at Mambasap, a John Asai, who was a supporter of the Third Respondent threatened every voters present and scrutineers of all candidates that if they try to stop double voting "Sanguma blong Tommy Tomscoll bai kilim yupela". As a result of this threat/intimidation, voters were coerced or manipulated into casting their votes for the Third Respondent.
15 Because of all these alleged above, the election of the Third Respo9ndent could not be said to be fair and free and that the election conducted in the Middle Ramu Open Electorate in 2012 was not conducted in a free, fair and safe manner.
C. PARTICULARS OF ERRORS, OMISSIONS, AND/OR ILLEGAL AND IRREGULAR PRACTICES COMMITTED BY ELECTORAL OFFICIALS AND/OR THEIR AGENTS OR SERVANTS
16 It is also alleged that the First and Second Respondents, either by themselves or through their agents, servants and /or their associates committed various illegal and irregular practices and made errors and omissions before, during and after the 2012 elections in the Middle Ramu Open Electorate. Some of these are particularized as follows:
(a) A Johnson Gongai was the Assistant Returning Officer for the Arabaka LLG in the 2012 National General Elections for the Middle Ramu Open Electorate. Johnson Gongai is in fact the Manager for Arabaka LLG. In 2010, he was responsible for the census and common roll updates for the Arabaka LLG. He failed to do that, and as a result many eligible voters for Arabaka LLG did not get registered and many others had their names deleted altogether from the common roll;
(b) Prior to and during the election exercise, Johnson Gongai openly boasted in public and whilst drunk that "I, Johnson Gongai will do everything under the sun to make Ben Semri (Petitioner) lose this 2012 National Elections". The Petitioner did lose because Johnson Gongai, who was also the Assistant Returning Officer of Arabaka LLG made sure of that;
(c) In four (4) polling venues out of fifty-one (51 polling venues in the Arabaka LLG, five hundred and five (505) people missed out on voting because their names were not on the common roll, despite having voted in 2002 and 2007;
(d) Still in the Arabaka LLG, in four (4) polling venues, electoral officials did not turn up to conduct polling. These polling venues were Wobu, Litibu, Itusu and Akrukai. As a result, over seven thousand (7,000) eligible voters did not have the chance to exercise their constitutional right to choose their leader for the next five years.
(e) Still in the Arabaka LlG in Ward 9 at Wotabu, a gazette polling venue in 2002 and 2007 elections, the people waited there in vain for the polling team to arrive so that they could cast their votes. The polling team never arrived. As a result over five hundred (500) eligible voters were denied their constitutional right to choose their leader.
(f) Still in Arabaka LLG, in Ward 21 at Akrukai, people there waited there in vain for the polling team to arrive so that they could cast their votes. The polling team never arrived. As a result over two hundred (200) eligible voters did not have the chance to vote
(g) Due to the number of eligible voters missing out on voting the Petitioner lodged an official complaint with the First Respondent and requesting that those who missed out from voting be given a chance to cast their votes.
(h) On Friday the 6th of July 2012, the Second Respondent announced that polling in Middle Ramu and Usino-Bundi electorates are to be extended for another extra two (2) days. Whilst Usino-Bundi electorate polled for those extra two (2) days, the First Respondent failed to conduct polling in Middle Ramu Open Electorate for those areas that missed out on election. When the First Respondent was asked by he failed to take advantage of the extension and conduct polling on those areas that missed out, he reacted by saying "You seek legal advice and I will seek legal advice".
(i) There were no security personnel to escort and safeguard the election process and election materials for most of the polling venues in the four (4) LLG's of Middle Ramu Open Electorate, namely Kovon, Simbai, Josephstaal, and Arabaka LLG's. This was confirmed by Sergeant Richard Sibolo of CID stationed at Aiome on the 9th of July 2012;
(j) On the 12th of July 2012, before the counting of box No. 100149 of Provincial Team 85, the Presiding Officer, Godfred Yambai presented the ballot box. After the counting of that box, the numbers did not tally. The First Respondent was asked what was wrong and he said there were twenty (20) extra ballot papers in there and that the serial numbers did not match. The First Respondent was further queried and he said, "I am not a lawyer, I am not a judge, take it to Court". This box was from Kovon LLG.
(k) For the same ballot box almost al the ballot papers were signed or endorsed by two (2) different persons. Usually the ballot papers would be endorsed by one person only, - the Presiding Officer. This anomaly was objected to during counting, but the Presiding Officer could not explain why thee were two (2) different signatures on the ballot papers;
(l) Due to these anomalies and irregularities, the Petitioner and two (2) other candidates lodge a complaint to exclude the votes from this particular box. However, this was not done.
(m) On the 13th of July 2012, ballot box No. 100321 from Provincial Team 91, Simbai LLG Team 3 was disputed because it had ninety-two (92) ballot paper butts in it. That should never be the case as ballot boxes were to contain ballot papers only. Candidates, including the Petitioner objected to the counting of this ballot box but to no avail;
(n) Due to these irregularities, the candidates, including the Petitioner demanded that the remaining ballot boxes for Simbai and Kovon LLG's be not counted but set aside due to obvious tampering, but their protest were al in vain;
(o) In relation to ballot box No. 100321, which was obviously tampered with, the Third Respondent polled 2,270 votes out of a total of 2,965 votes in that box, which represented 77% of the votes contained in that tampered box;
(p) In relation to box No. 100322 for Simbai Team 4 and Provincial Team 92 for count 26, the tag number of the outer seal was missing. The boxes were left in Simbai for over one week without any security personnel guarding them. Box No. 100322 had a big hole at the bottom of it. When the box was emptied for counting, it was discovered that the ballot papers were bundled together in packs of 10's and 20's.
(q) In relation to box No. 100202 for Kovon Team 3 this ballot ox was also broken on the sides and it was pasted together with masking tapes. The ballot papers were also bundled together in packs of 10's and 20's.
(r) On the 18th of July 2012, the Presiding Officer for Box No. 100207, a Fr. Frank Mand presented this box for counting. This Team was not gazette, but the box appeared to be from an area that is referred to above in (j). Later the First Respondent re-named the Team as Team 85B.
(s) There were no quality checks carried out on all ballot papers to verify signatures, serial numbers, informal votes, misplacing of votes in other candidates' trays, etc., after counting of the primary or preliminary votes.
(t) There are so many other discrepancies witnessed and apparent during the polling and counting that warrants a review of the whole process."
THE LAW
16. The starting point of the applicable Law relating to objections to competency is s. 208 of the Organic Law. It reads:
"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)."
17. The wording of the above provision seems to be clear enough and simple, but the provision has created a lot of debate not only between the bench and bar but amongst numbers of the bench, past and present, both in the National Court and the Supreme Court.
18. The main issues relating to s. 208(a) of the Organic Law in this case is what the petitioner is required to plead in his petition in order to satisfy the requirements of s. 208(a).
19. In Holloway v Ivarato, The Supreme Court said:
"The requirement of s 208(a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return may be declared invalid. Setting out grounds without more does not satisfy the requirements of s 208(a) of the Organic Law. The facts set out under s 208(a) of the Organic Law would necessarily indicate the ground upon which a petitioner relies. The facts which must be set out under s 208(a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated."
20. Then as to what are sufficient fact the Supreme Court in the same case said:
"What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved."
21. Since the Holloway v Ivarato case to today, additional meanings, words and phrases have been added to define what s. 208(a) requires in terms of what are "facts".
So really, as it is, it is not correct to say the law is settled on the requirements of s. 208(a). There is still a lot of debate over this. In the process many petitions are finding it difficult to pass the competency stage, thereby allowing many sometimes, legitimate complaints against electoral officials to pass through without any sanctions. This then lead to repetitions of those same illegal or irregular practices in future elections, which by then become deeply entrenched and difficult to change.
22. In the objection to competency application, I will apply what I consider to be the requirements of s. 208(a).
PARAGRAPH 13(a)
23. I now go on to deal with the disputed pleadings individually.
Are the pleadings in Paragraph 13 of the petition bad or are they insufficiently pleaded?
Before I answer that question I first make an observation that the heading before paragraph 13 is put in the wrong place and therefore confuses the reader. In fact paragraph 13 purports to lay down the grounds upon which the petition relies on to invalidate the election. Perhaps the appropriate heading before paragraph 13 ought to be "GROUNDS UPON WHICH THE PETITIONER RELIES ON". The current heading should in my view follow after paragraph 13 (b) but before paragraph 14 to start a new paragraph. This will give the reader a clear and easier to understand petition.
24. Having made that preliminary observations, I go on to the pleadings in paragraph 13. This paragraph lays down the grounds relied on by the petitioner to mount his petition. His first ground alleges "irregular conduct and illegal practices by candidates and their agents and/or associates". The complaint against this pleading is that "candidates and their agents and or associates" is too general. In other words, who are the allegations against or which candidate and their agents or associates are alleged to have committed those irregular or illegal activities. Paragraph 1 of the petition says there were 37 other candidates who contested this seat. So this allegation appears to be against all of those 37 candidates.
25. The immediate issue here is whether that pleading is too general and therefore ambiguous? The Supreme Court in Holloway v Ivarato and another (1988) PNGLR 199 gave the purpose for clear pleading saying:
"The purpose of the pleadings is to indicate clearly the issues upon which the opposing party may prepare his case and to enable the Court to see with clarity the issues involved."
26. The Supreme Court and the National Court respectively have consistently over the years reiterated this clear and easy to understand message. However over the years this same message has been broadened by the Courts to a stage whereby now, we do not know where facts or allegations finish and where evidence starts. See Benias Peri v Name Petrus Thomas and Andrew Trawen Unnumbered and Unreported decision of 20 April 2004. Sanagke v Wimb & ors Unnumbered Judgment Unreported NC decision of 21 November, 2012.
27. Where a petition generalizes an allegation it is extremely difficult for the opposing party to respond to that type of generalized allegation. In my respectful opinion therefore, paragraph 13(a) of the petition is too general and vague and has been badly drafted and pleaded and so accordingly I strike that paragraph down.
PARAGRAPH B
28. Before dealing with Paragraph 13(b), I will deal first with paragraph B with its heading. This is because I think the matters in B were meant to be particulars of allegations made in paragraph 13(a) of the petition.
29. I struck down paragraph 13(a) already. For the same reasons I strike down B and the heading it contains as being too general and ambiguous.
PARAGRAPH B(a)
30. The allegation in B(a) is that during the campaign period supporters of the Third Respondent went around giving out cash and induced voters to vote for the Third Respondent. This allegation was capable of being made specific in that it could have stated the dates, times and places and importantly the names of the Third Respondent's supporters who gave out cash and who received the cash and what those cash payouts were for. As it is pleaded, the allegations are too general and vague such that the Third Respondent cannot in fairness properly respond.
31. Moreover, it is not clear if the petitioner is alleging bribery or undue influence. He failed to name those who committed the bribery or undue influence.
32. I do note one instance of cash payment made to a Noah Anjem, the Chief Scrutineer of Candidate, Johnny Ananias Alonk in return for Alonk's second preference votes. However, again this allegation does not name who made the cash payment to Noah Anjem and whether such payment was made with the knowledge and authority of the Third Respondent. So the question is, are the pleadings in B (a) sufficient compliance with s. 208(a) of the Organic Law?
33. Before I answer that question it is only proper that the law is stated to support the answer. The National Court in Agonia v Karo (1992) PNGLR 463 Sheehan J said:
"Any aggrieved person has the right to bring a petition challenging an election for breaches of the electoral process. But an election petition does not inaugurate some general inquiry into the process of an election to see if any offences or omissions have occurred. A Court of Disputed Returns is not an open forum for unspecified complaints where, after all parties have aired their dissatisfaction, the Court sifts the complaints and reports whether, on balance, the election can be considered satisfactory or whether a new election should be held. The Court of Disputed Returns has the duty of hearing and determining only those petitions which challenge an election by definite specific charges that, if proved, will result in an election being set aside".
This statement was approved by the Supreme Court in Kopaol v Embel (2003) SC 727.
Sheehan J again in Mae v Genia (1992) N1105 said:
"Section 208(a) stipulates that particulars of facts must be given. That is, a petition cannot just allege grounds in general terms, but must assert the base facts on which the grounds are founded."
34 Most recently Kandakasi J in Sanagke v Gordon Wimb & ors (2012) Unreported and unnumbered judgment said:
"Such specifics include the total number of votes casted, disputed and or secured by a winning candidate, the runner up and other candidates, (see Greg Mongi v Bernard Vogae & Anor (1997) N1635) names of people responsible for the maters complained of, when and where the events, be it errors, omissions or illegal practices have occurred (see Torato v Electoral Commission [1988-89] PNGLR 85 at 88; and Olmi v Kuman (2002) N2310) and a description of the conduct, error, omission or illegal practice complained of. Statement of facts in general terms without the relevant and necessary details of the kind just mentioned which would give a complete story would fail to meet the requirements of s. 208 (a), (Vagi Mae v Jack Genia & Electoral Commission (supra)."
35 The petitioner argued that he pleaded sufficient facts to support the ground of irregular or illegal conduct and that any specifics should be left to evidence. I agree with the proposition that the requirement under s. 208(a) of the Organic Law is to "set out the facts relied on......" and not to set out the evidence. However, it is "the facts relied on" in the petition that the evidence must later at trial be connected with or to. I am indeed mindful, and for that I am indebted to Counsel for the petitioner for pointing out, provisions of Sections 217, and 222 of the Organic Law.
36 For instance paragraph B(a) sets out these allegations of facts:
"During the campaign period, supporters of the Third Respondent". Those facts are vague. It would be far more better to say those same facts in the following way:
"On 30 May 2012, Yellow Red, a supporter of the Third Respondent....." That allegation of fact can be properly denied or conceded because it is more specific, whereas, the latter example cannot be properly denied or conceded because the Third Respondent is left guessing or speculating. That is what must be avoided. See Pawa v Nagle (1992) PNGLR 563 and Amet v Yama (2010) SC 1064.
37 In answering the question in a somewhat long winded way, as to whether the facts as set out in B(a) are sufficient, I am of the view that the facts set out there are too vague and too general which cannot be properly answered by the Third Respondent as he is left to guess and speculate. Moreover, it is not clear whether the allegation is on bribery or on undue influence. It is not known who bribed who and who unduly influenced who and how many votes were affected. Accordingly I strike down this paragraph.
PARAGRAPH B(b)
38 This paragraph alleged that Melton Atwaing and Stanley Wieng marked all the ballot papers at Kairok Bris until rain disturbed them. What are the Respondent to make of that alleged Statement of fact? The Respondents do not know if the two men are supporters of the third Respondent or polling officials. The Respondents do not know if voters at Kairok Bris voted or not. Moreover, they do not know how many ballot papers were marked by the two men at the Kairok Bris. What does the petitioner mean when he says the two men "marked" all the ballot papers. What is the alleged wrongful, or irregular or illegal conduct complained of here? On whose behalf were the ballot papers marked and did the third Respondent have knowledge or did he authorize such behavior? Whether the affected ballot papers were likely to affect the result of the election is not pleaded.
Paragraph B(b) is very poorly pleaded and has no real substance and value to the petitioner or anyone for that matter. Accordingly I strike it down.
PARAGRAPH B(c) AND B(d)
39 Paragraphs B(c) and (d) are addressed together because the allegations there relate to the same events. Paragraphs (c) and (d) allege that several young men, supporters of the Third Respondent at Fundum Ward 5, on 28 June demanded everyone to vote for the Third Respondent. There were said to be 660 eligible voters from Fundum. These several young men demanded that all the ballot papers be exhausted. The petition alleges that as a result, all the ballot papers were used up because people voted two, three, four and more times just to finish all the ballot papers and that, this was allowed by the Electoral Officials.
40 How are the Respondents to respond to these allegations of facts? They do not know the names of the several young men for a start. Furthermore, they do not know if the several young men acted with the knowledge and authority of the Third Respondent. Did all the eligible 660 voters vote and how many of the eligible 660 voters voted two times, three times and more. The petition does not name any electoral officer who was present and who authorized such an illegal practice to start and continue. How many ballot papers were issued to the Fundum voting place and how was the election result likely to be affected. The respondents once again are left speculating as to how they are to respond. In all fairness they just cannot respond to these vague allegations put to them. Accordingly I strike down the two paragraphs B(c) and (d).
PARAGRAPH B(e)
41 This paragraph alleges that underage children voted. Where those nameless underage children voted is not stated. How many underage children voted is also not stated. The petition alleges those children were forced to vote? Who forced them to vote and how they were forced to vote is not stated in the allegations of fact. The Respondents cannot answer these vague alleged set of facts. How were their votes likely to affect the result of the election was not stated. Accordingly I strike down paragraph B(e).
PARAGRAPH B(f)
42 This paragraph alleges that a Vincent Kuloi stationed himself "at a polling compartment and casted all the votes for all the voters". The facts alleged by the petitioner is not clear in that it does not say who or what Vincent Kuloi is. If he is a polling official what is Vincent's role there to station himself in that position. If he is not a polling official who authorized him to be stationed there?
43 The paragraph does not state what the illegal or irregular practice is committed by Vincent Kuloi. Did all eligible voters at that polling station vote or did Vincent Kuloi vote on their behalf? How many eligible voters were affected by this practice and were the results of the election affected? These are left out and not stated in the alleged facts. They are in my view relevant facts that should be pleaded. Evidence will be called at the appropriate time to substantiate those allegations but the petitioner must lay down the foundation for the evidence to follow later and the Respondents have the right to reply to the allegations even without the evidence of the petitioner. Accordingly I strike down this paragraph.
PARAGRAPH B(g)
44 This paragraph alleges that on 2 July 2012, between 8:00 am and 11:00 am and at 1:43 pm at Manbasap, a John Asai, a supporter of the Third Respondent threatened voters and Scrutineers of all candidates that if they tried to stop double voting "Sanguma blong Tommy Tomscoll bai kilim yupela". As a result of this threat or intimidation, voters were coerced or manipulated into casting their votes for the Third Respondent.
45 Subject to what I will say later, this paragraph is the closest thing to a proper pleading. It states the place, time, and place and names a person responsible for uttering words and who that person is aligned with or to and what the consequence of that utterance was.
46 The Respondents argue that the petition does not name any voter who was coerced or forced to vote for the Third Respondent. The pleadings in this paragraph does not state the nature of the illegal practice, but it is a legal issue, and is not in my opinion obliged to plead it. The Respondents submit that it is not alleged if John Asai committed these illegal acts with the knowledge and authority of the Third Respondent. These words are imported from s. 215(3)(a). The question then is, should the requirements in s. 215(3)(a) of the Organic Law be pleaded to satisfy the requirements under s. 208(a) of the same law. I think in all fairness they should be pleaded so as to allow the relevant respondent to be put on notice and to properly reply, but I think this issue on each case should be considered on its own merits as to whether thy should be pleaded or not.
47 While I have said some good things about this paragraph it still falls short of the requirement of s. 208(a) of the Organic Law and accordingly I strike it down.
PARAGRAPH 13(b)
48 This paragraph lays down the other group of grounds relied on by the petitioner to invalidate the elections of the Third Respondent. This petition alleges errors or omissions committed by electoral officials.
49 The particulars of those errors, omissions and or illegal and irregular practices committed by the electoral officials are contained in part C of the petition and starts off with paragraph 16 and so I will deal with each allegation of fact in Paragraph 16.
PARAGRAPH 16(a)
50 In this paragraph the Petitioner complains about a Johnson Gongai who was the Assistant Returning Officer for the Middle Ramu Seat and whose responsibility it was to update the common roll for the electorate and more so to update the common roll for the Arabaka Local Level Government. The complaint is that Johnson Gongai failed to register many eligible votes from that Local Level Government area into the common roll.
51 It appears from the complaint that the petitioner is questioning the correctness of the Common Roll for Middle Ramu. Section 214 of the Organic Law prohibits the Court from inquiring into the correctness of a roll. In any case the petition is pleaded generally and I do not know who was wrongly omitted or rejected from the common roll. No names are pleaded. Accordingly I strike down this paragraph.
PARAGRAPH 16(b) AND (c)
52 These paragraphs allege that Johnson Gongai, The Assistant Returning Officer was responsible for the petitioner's loss in the elections. This is presumably because Johnson Gongai failed to update the common roll for the Arabaka Local Level Government Area. I say "presumably" because the paragraph fails to plead how Johnson Gongai caused the petitioner to loose the election. These paragraphs are too vague and are speculative. For those reasons I strike down this paragraph.
PARAGRAPH 16(d)
53 This paragraph alleges that there was no polling at 4 polling venues at Wobu, Litibu, Itusu and Arukoi and as a result of no polling 7,000 eligible voters did not vote. This is a serious allegation.
54 The First and Second Respondents submitted that this allegation is too general in that it must be assumed that the polling teams did not go to those polling venues and that over 7,000 eligible voters were denied their rights to cast their votes. They submit that the pleadings have left a lot to be assumed by the Respondents and the Court.
55 They further submitted that the petitioner failed to plead:
56 I agree that the petitioner has not stated as an allegation of fact that the 4 polling venues were gazetted. However, to me this
is information that is and should be in the intimate knowledge of the First and the Second Respondents. It could have been pleaded
but has not been. Is this a good reason to strike out this allegation? I think not because in my view, it can also be a matter for
evidence. As to how many eligible voters were at the said polling venues is also information the First and Second Respondents know
or ought to know from the common roll. As to the date and time of polling at those polling venues it is information also known or
ought to be known to the First and Second Respondents. As to whether or not the polling teams turned up at the 4 polling venues is
a matter that must be known to the First and the Second Respondents but more so the First Respondent because he was the Returning
Officer for the electorate.
57 As to how many voters were affected by non polling by polling officials, over 7,000 eligible voters were alleged to be affected
and as a result, did not vote. The question then is, are sufficient facts pleaded in relation to this allegation so as to comply
with s. 208(a) of the Organic Law.
58 The Respondents argued that the pleadings are too general in that no names of voters affected are pleaded or it is not pleaded if the results of the elections would be affected. I agree no affected voters are named and I agree that it is not pleaded if the results of the elections would be affected. However, should the names of affected voters also be a matter for evidence? With respect, I would think so. In the same vein should the petition be required to plead if the results of the election would be affected or should they be left to evidence? In this case the winning margin was over 7,000 and so the election result may not be affected and so it may not be material to plead that, but evidence certainly will have to be called on these. I will not strike out this pleading.
PARAGRAPH 16(e)
59 The allegations in this paragraph are similar to the allegations in paragraph 16(d). In fact it is repeated here. I will not allow repetition of the same allegations here and so I strike this paragraph down.
PARAGRAPH 16(f)
60 Again the allegations in this paragraph are similar to the allegations contained in paragraph 16(d) and (e). For the same reasons I strike down this paragraph as being a repetition.
PARAGRAPH 16(g) AND (h)
61 In relation to these two paragraphs I am of the view that these are matters for evidence and strike them down.
PARAGRAPH 16(i)
62 This paragraph complains of no security personal available to safeguard the polling teams in the Middle Ramu Electorate. Again I consider this to be a matter for evidence but has been pleaded. I can not see the relevance of this pleading when paragraphs 16(d), (e) and (f) only complains of voters not given the opportunity to vote. I will strike this paragraph down.
PARAGRAPH 16 (j)
63 This paragraph alleges there were 20 extra ballot papers in ballot box 10049, Team 85, from Kovon Local Level Government where the serial numbers did not match. The 20 extra ballot papers appear to have been counted. There are no pleadings to suggest that counting of that box was objected to or disputed by various scrutineers. There is no allegation that this ballot box was a disputed box. Where there is no objection raised to count a ballot box, the ballot papers in that box will be counted and tallied. I will strike down this paragraph.
PARAGRAPH 16(k)
64 This paragraph is a continuation of allegations in paragraph 16(j). For the same reason I strike down this paragraph.
PARAGRAPH 16(l)
65 This paragraph is a continuation of sequence of events alleged in paragraph 16(j) and (k) but there is no good reason to allow this paragraph to remain and so I will also strike it down.
PARAGRAPH 16(m), (n) AND (o)
66 These paragraphs allege 92 ballot paper butts in ballot box 100321 and that only ballot papers should be in the ballot box. The important point here is whether there were ballot papers in this box as well and whether they were counted. It is not pleaded in the allegation. There is no allegation as to how the ballot butts got into the box. These allegations are too general. Accordingly I strike down paragraphs 16(m), (n) and (o).
PARAGRAPH 16(p)
67 This paragraph alleges that ballot box 100322 for Simbai Team 4 and Provincial Team 92 was tampered with in that the tag number of the outer seal was missing and that when the box was opened for counting the ballot papers were bundled together in packs of 10's and 20's. It also alleged that there was a huge hole at the bottom of it. The ballot papers from the box were counted. How many ballot papers were in it is not pleaded and whether it will affect the result of the election is not pleaded as well.
68 However a serious allegation of ballot box tampering has been pleaded in that there was a hole at the bottom of the ballot box or that the ballot papers there were neatly bundled. Ballot papers are not meant to be neatly bundled. This is an allegation of ballot box tampering and questioning the integrity of a ballot box. While the number of ballot papers from that box is not pleaded and whether the election result will be affected is not pleaded, I am satisfied that sufficient facts have been pleaded in this paragraph for the purposes of s. 208(a) of the Organic Law and as such I refuse to strike down this paragraph. The question of whether the election results will be affected is a matter for evidence in my respectful opinion.
PARAGRAPH 16(q)
69 This paragraph alleges that ballot box number 100202 for Kovon Team 3 was also broken on the sides and was pasted with masking tapes. This is a serious allegation of ballot box tampering and questions the integrity of a ballot box. Again the ballot papers were in bundles of 10's and 20's. Ballot papers when casted are not bundled, so the question is how were they bundled? There are no pleadings as to how many ballot papers were in that box or whether the election results will be affected but I am of the view that they are matters for evidence. Serious allegations of tampering of ballot boxes and ballot papers have been made which the First and Second Respondents must answer for. I am satisfied that sufficient facts for purposes of s. 208(a) have been pleaded in this paragraph and I will allow it to remain.
PARAGRAPH 16(r)
70 This paragraph alleges box number 100207 may be an illegal box because it came from a team which was not gazetted but later renamed as Team 85B. There is no allegation of fact as to how many ballot papers were in that box. The First and Second Respondents submit that as the petition has not pleaded how many ballot papers were in that ballot box or whether the results would be affected is fatal to the petition.
71 The issue is, are the allegations of facts as pleaded in this paragraph sufficient for the purposes of s. 208(a) of the Organic Law. The petitioner would think they are. However, the Courts have widened the scope of that requirement under s. 208(a) to other provisions of the Organic Law such as Sections 218 where it uses the words or phrases "which did not affect the result of an election" or Section 215(3) where the phrase "the result of the election was likely to be affected". The Courts have effectively "imported" into s. 208(a) words or phrases which do not belong to it. All s. 208(a) requires is "set out the facts relied on to invalidate the election or return. Should the issues raised under s. 215(3) and s. 218 be matters for evidence at the trial? Are the Courts in some cases driving the petitioner out from the judgment seat too early? I find support for this contentions from Kirriwom J who endorsed in Parkop v Vele, N3320 and quoted from a Supreme Court decidion in Sauk v Polye (2004) SC 769 where that Supreme Court in turn quoted Hinchliffe J in the matter of EP 73 of 2003 Benias Peri v Nane Petrus Thomas and Andrew Trawen Unnumbered and Unreported decision of 20 April 2004 and made its own observations and remarks in the following way:
'We are of the view that what has been happening progressively since the early election cases such as Delba Biri v Bill Ninkama (supra) is as aptly described by Hinchliffe J in another election case, EP 73 of 2003 Benias Peri v Nane Petrus Thomas and Andrew Trawen Acting Electoral Commissioner and the Electoral Commission (unreported decision of 20/4/2004) when commenting on another National Court decision that had been relied on and referred to him:
"With all respect to the trial judge, it seems to me that his requirements to satisfy s 208 (a) were so demanding that if every petition was dealt with in the same way then no petition would ever get past the competency state. Having said that it would also seem to me that we are making it more and more difficult for petitioners to proceed when that was not the intention of the Legislature in the first place. Our Legislators obviously saw a situation where the petitioner could appear on his own petition without a lawyer and in fact if a petitioner did wish to be represented by counsel then it had to be with the leave of the Court (see s 222 of the Organic Law). Clearly the preparation on and presentation of a petition and the subsequent Court appearance was meant to be relatively uncomplicated and fairly simple. Unfortunately we have allowed it all now to turn into a nightmare where even some of the most senior lawyers in the country are drafting petitions, which are being declared incompetent by our Courts and being struck out and thrown out. One wonders where it is all going to end. Clearly the differing opinion on where the material and relevant facts finish and where the evidence commences, need to be cleared up, possibly by a five Judge Supreme Court. It must also not be forgotten that an election petition does not only involve two or three people as in a typical civil cause but it involves hundreds and sometimes thousands of people in the electorate. For those people to come to Court to hear an election petition then only to be told that it finished almost before it started because of what I consider to be technicalities must be extremely confusing and disappointing for those people who had come to Court to see that justice was done. In some cases whether justice was ever done or not will never be known because the case was never heard." (Lighter Underlining's mine.)
This Court must unreservedly and respectfully agree with and endorse those sentiments and concerns of His Honour. Because of the frequent nit-picking technical objection raised in the guise of real substantive issues of competency or jurisdiction (based either on ss. 208, 209 and 210 Organic Law, supra, or ss. 50 and 103 Constitution), some very serious and wholesale irregularities, not to mention blatant illegal practices, at the campaign, polling and counting stages of an election more often than not escape judicial scrutiny and remedy. So much so that the constitutional authority whose direct duty and responsibility is to 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 election.'
72 I agree with Kirriwom J (Parkop v Vele N3320) that this is a very powerful statement by the Supreme Court in endorsing Hinchliffe J's statement and I join Hinchliffe J and ask, whether the importation of foreign words into s. 208(a) of the Organic Law from other provisions of the same law such as s. 215 or s. 218 are ever going to end. If they are required to plead such matters as "the results of the elections are likely to be affected" and "which did not affect the result of an election" then I respectfully agree with Hinchliffe J that no petition is ever going to get past the competency stage. The Courts should and must authoritatively state with clarity where facts required under s. 208(a) start and finish and where evidence begins.
73 I note that Kandakasi J has raised this very issue and commented on them several times which he alluded to again in Sanagke v Wimb & ors 21 November 2012, Unnumbered with no end in sight though. Having said that I am of the firm view that paragraph (r) is sufficiently pleaded for the purpose of s. 208(a) of the Organic Law.
PARAGRAPH 16 (s) AND (t)
74 These two remaining paragraphs make mere statements and make no specific allegations that no quality checks were carried out on the ballot boxes referred to in the body of the petition. Ultimately I will strike down both paragraphs.
SUMMARY OF RULING
75 The end result of the application to Objection to Competency of EP 49 of 2012 is that most of the allegations in petition have been struck down. All the allegations against the Third Respondent have been struck down. Some of the allegations against the First and Second Respondent have been struck down while some remain. The effect of this is that EP 49 of 2012 survives to see the next stage of the proceedings.
76 The following have been struck down –
Paragraph 13(a)
" B
" B(a)
" B(b)
" B(c)
" B(d)
" B(e)
" B(f)
" B(g)
" 16(a)
" 16(b)
" 16(c)
" 16(e)
" 16(f)
" 16(g)
" 16(h)
" 16(i)
" 16(j)
" 16(k)
" 16(l)
" 16(m)
" 16(n)
" 16(o)
" 16(s)
" 16(t)
77 The following paragraphs remain:
Paragraphs 16(d)
" 16(p)
" 16(q)
" 16(r)
78 The matter goes to trial on the remaining grounds.
_________________________________________________
Elemi Lawyers: Lawyer for the Petitioner
Harvey Nii Lawyers: Lawyer for the 1st & 2nd Respondents
Meten Lawyers: Lawyer for the 3rd Respondent
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