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Kandiu v Parkop [2014] PGNC 219; N5528 (7 March 2014)

N5528

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]


EP NO. 104 OF 2012


In The Matter Of Organic Law on National and Local Level Government Elections


AND:


In The Matter Of the Disputed Return of Election Results for National Capital District Provincial Seat


BETWEEN:


MICHAEL KANDIU
Petitioner


AND:


HON. POWES PARKOP
First Respondent


AND:


CYRIL RETAW
Returning Officer, National Capital District Provincial Electorate
Second Respondent


AND:


RICKY FUGUNTO
Acting Returning Officer, National Capital District Provincial Electorate
Third Respondent


AND:


ELECTORAL COMMISSION of PAPUA NEW GUINEA
Fourth Respondent


Waigani: Kassman J
2013: 3rd and 8th July and 26th and 29th November
2014: 7th March


Cases Cited:


Delba Biri v Bill Ninkama [1982] PNGLR 342
Holloway v Ivarato [1988] PNGLR 99
Jimson Sauk v Polye and Electoral Commission [2004] SC 769


Legislation Cited:


Constitution Section 155(2)(b), Section 50, Section 122 and Schedule 1.16
Organic Law on National and Local Government Elections Section 206, Section 210, Section 215(3), Section 208(a), (c) and (e), Section 218, Section 177, Section 191, Sections 126 and 153(1)(a)
National Court Election Petition Rules 2002 Rule 2(2) and Rule 15
Criminal Code Sections 102 and 103


Counsel:


P Korowi, for the Petitioner
T Dawidi, for the First Respondent
L Okil, for the Second, Third and Fourth Respondents


DECISION
(Objections to the competency of the petition)


  1. KASSMAN J: In this judgment, the following will apply;
  2. In the year 2012, National General Elections were conducted for both provincial and open electorates or seats which make up the membership of the Papua New Guinea National Parliament. NCD is one of the provincial electorates for which writs were duly issued. Within NCD are three open electorates namely Moresby South, Moresby North East and Moresby North West.

Background facts


  1. Kandiu and Parkop both nominated for and contested the elections along with other candidates for the NCD Provincial Electorate.
  2. On 8 August 2012, Parkop was declared the duly elected member for the NCD Provincial Electorate. Wari Vele was the runner-up followed down by Robert Agarobe, Kandiu and Aiwa Olmi followed by other candidates.
  3. In this proceeding, Kandiu challenges the validity of that return and is named as the Petitioner while Parkop is named as the First Respondent.
  4. The Second Respondent Retaw was the Electoral Commission's Returning Officer for the NCD Provincial Electorate who was subsequently replaced by the Third Respondent Fugunto. Trawen and the EC are named as the Fourth and Fifth Respondents respectively. Together in this matter, they are all referred to as the Electoral Commission ("EC").
  5. The Petition was filed on 14 September 2012. On 9 October 2012, Notice of Objection to the Competency of the Petition was filed by the EC and on 2nd November 2012 by Parkop.
  6. Rule 15 of the EP Rules states the Court shall deal with the petition and any challenges to the competency of the petition at the hearing.
  7. I heard submissions from all parties on the 3rd and 8th of July and again on 26th November 2013 and adjourned to rule on both objections to competency. In addition to considering the petition in the context of both objections to competency, I have also considered the written submissions of Parkop filed 26 April 2013, EC filed 1 July 2013 and Kandiu filed 1 July 2013.
  8. At this juncture, I state for the record that I also preside over two other petitions arising from the same election for the NCD provincial electorate and the return of Parkop. The petition of Wari Vele in proceeding EP No. 103 of 2012 was dismissed on 8th November 2013 when I upheld the Objections to Competency of that Petition. As to the petition of Aiwa Olmi in proceeding EP No. 105 of 2012, I have heard submissions on objections to competency of that petition and will also deliver my ruling in that matter separately.
  9. By section 206 of the Organic Law, the validity of an election or return may be disputed by petition addressed to the National Court and not otherwise and by section 208(c) only a candidate or voter may sign the Petition.
  10. Here there is no challenge to the eligibility of Kandiu in signing and filing the Petition and it is not disputed that Kandiu was a candidate and eligible voter in the NCD provincial electorate.
  11. From my general knowledge, the elections are conducted in a number of stages commencing with the issue of the writs for the conduct of the elections, the nomination of candidates, the campaigning by candidates, the conduct of voting or polling and its scrutiny, the counting of ballot papers and its scrutiny, the declaration of results of the counting of ballot papers and declaration of the winner or member elect and finally the return of the writs.
  12. As the NCD Provincial Electorate is a provincial electorate, polling or the casting of votes for the provincial electorate took place at polling booths in the three open electorates of Moresby South, Moresby North East and Moresby North West when polling was simultaneously conducted for those open electorates. In other words, a voter on being permitted to enter the polling booth was eligible to cast a vote or votes, this election being by preferential voting, for the candidate or candidates of his choice for the open electorate and separately but at the same time for the NCD provincial electorate. All ballot papers were then inserted into ballot boxes and transported to the appropriate locations for counting.
  13. At the counting stage, ballot boxes from each open electorate of Moresby South, Moresby North East and Moresby North West containing ballot papers cast for the respective open electorates and the NCD provincial electorate were opened and counted at separate counting areas for the three respective open electorates. As counting progressed in each of the three counting centres in NCD, the results for the NCD provincial electorate were then tallied and relayed for registration at the NCD provincial electorate counting centre.
  14. In general, Kandiu makes allegations of four distinct types. Firstly, Kandiu alleges bribery by Parkop and or his servants and agents with the knowledge and authority of Parkop. Secondly, Kandiu alleges illegal practices were committed by Parkop's servants or agents. Thirdly, Kandiu alleges there were errors and omissions committed by the EC during polling and the counting of votes. Fourthly, Kandiu alleges undue influence by Parkop through his servants or agents.
  15. Kandiu's petition is in three parts. The first part of the Petition comprises paragraphs 1 to 10 which provide general background information. This covers basic facts as to the nomination of Kandiu and Parkop, the appointment of officers of the EC in respect of the NCD provincial electorate and their responsibilities and the role of the EC generally. Paragraphs 4 to 9 plead details as to the final count of votes for Parkop and Wari Vele and the difference, votes counted for Kandiu at his elimination and other statistics including the "winning margin". Paragraph 10 pleads details of the final result and declaration of Parkop as duly elected on 8 August 2012. Paragraph 4 states that Parkop polled 43,897 votes, Wari Vele polled 35,940 votes and Kandiu polled 17,803 votes. Paragraph 6 states the difference between Parkop and Vele was 7,957 votes and the difference between Parkop and Kandiu was 26,094 votes. These statistics are critical when examining the issue whether the illegal practice or error or omission stated in each ground to the petition was likely to affect the result of the election.
  16. The second part of the petition sets out the grounds of the petition in paragraphs 11 to 61. The grounds of bribery are pleaded in paragraph 11 where two cases of bribery are stated. The grounds of illegal practice are pleaded in paragraphs 12 to 29 inclusive where six cases of illegal practice are stated. The grounds of errors and omissions of electoral officials are pleaded in paragraphs 30 to 56 inclusive where six cases of errors and omissions by electoral officials are stated. The grounds of undue influence are pleaded in paragraphs 57 to 61 inclusive where two cases of undue influence are stated.
  17. The third part of the petition is titled "Relief" and contains the orders sought by Kandiu including an order for the recount of 12 ballot boxes from the six mile ward, a declaration that Parkop was not duly elected and a declaration that the election was absolutely null and void and a by-election be conducted for the NCD provincial electorate.

Competency of the petition


  1. Section 208 of the Organic Law on National and Local Level Government Elections provides in mandatory terms that a "petition shall set out the facts relied on to invalidate the election or return". Section 210 goes on to state "Proceedings shall not be heard on a petition unless the requirements of sections 208 and 209 are complied with."
  2. On these provisions, I am bound by the leading judgment of the Supreme Court in Delba Biri v Bill Ninkama [1982] PNGLR 342 where it was stated "section 208 is in mandatory terms and being the Organic Law on National Elections it is a Constitutional Law. Section 210 simply precludes any proceedings unless s.208 and s.209 are complied with". The petition must contain the facts relied on to invalidate the election or return. Any failure to do so will render the proceeding incompetent because of section 210 of the Organic Law.
  3. The Supreme Court in Holloway v Ivarato [1988] PNGLR 99 said what constitutes "facts" under section 208(a) "are the material or relevant facts which would indicate or constitute a ground or grounds upon which the election or return might be invalidated, but not the evidence by which it or they might be proven. The purpose of the pleading is to indicate clearly the issues upon which the opposing part may prepare his case and to enable the court to see with clarity the issues involved."
  4. Counsel for Kandiu submits there has been a recent trend of flexibility and departure from the strict compliance with requirements of section 208 and 209 of the Organic Law. Counsel refers to a number of decisions of the Supreme and National Courts. Counsel argued that in Jimson Sauk v. Don Polye (2004) SC769, the Supreme Court held that the Courts in determining applications under Section 210 of the Organic Law are entertaining lawyers who are "nit-picking" with technical objections which defeat the whole purpose, intent and spirit of Section 222 of the Organic Law which intended that petitioners themselves are to file petitions without assistance of lawyers. In interpreting and applying Section 222, the Supreme Court said "It is obvious to us that the legislative intent is to exclude or limit professional legal involvement in the initiation and conduct of election petitions. Never was there any intention that this special jurisdiction of the court would end up being a game for the legal eagles to play around with depending on whose instructions they were actioning on".
  5. Section 222 of the Organic Law provides as follows;

"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."
  1. With respect, I am of the view that it was not parliament's intention to exclude or limit professional legal involvement in the initiation and conduct of election petitions. Firstly, that is not stated in the section. To "exclude" or "limit" is a definitive and deliberate approach and one that should be specifically stated and not be left to debate. Parliament has the power to legislate as it wishes but within the bounds of the Constitution and along established conventions. The "right to be heard" in a court of law is preserved in the Constitution and all laws and regulations including rules of the courts. The "right to be heard" extends to the right to consult a lawyer and the right to be represented by a lawyer. There are circumstances where positive discrimination is encouraged and accepted. This is particularly where the intention is to promote fairness and equality. Where the circumstances of a particular person or a part of the community put them at a disadvantage and where a "level playing field" is impossible without lawful intervention, the introduction of specific measures may be justified. Such circumstances include social, economic and religious factors.
  2. What is clear from the wording of section 222 is that it does not exclude or limit the involvement of professional legal assistance in the initiation or commencement of election petitions. A petitioner may obtain legal assistance in the preparation and filing of the petition, affidavits and all other court documents. As to their execution, the petitioner must personally sign the petition. A respondent may also obtain legal assistance in the preparation and filing of their appearance, notice of objection to competency to the petition, affidavits and all other court documents and they may be signed by the respondent or a lawyer on their behalf.
  3. Section 222 is designed, or indeed must be interpreted, to ensure there is a level playing field where a petition is being dealt with and heard in court. The parties would include a losing candidate as petitioner, the member elect as one respondent and the Electoral Commission and/or its officers named as the other respondents. Sub-section (1) firstly gives the parties the liberty to agree that they all or one or more be represented by a lawyer. That is a matter for consent by the parties. Where the parties cannot reach agreement, sub-section (1) gives the court the discretion to determine whether one or all parties may be represented by a lawyer. That then is a matter for application by the parties.
  4. A number of scenarios may be presented and that must all be considered by the court in the exercise of its discretion as to whether all parties or one or more is each represented by a lawyer. For the petitioner and member elect, the most common circumstance would be where one has academic or legal training or experience that puts them at an advantage over the other. It may also be the case that one has a speech, hearing or vision disability that puts them at a disadvantage to the other. For the Electoral Commission and its officers named as parties, it would be highly unlikely that they would appear in person in court so they would certainly make appearance through a lawyer. That immediately puts them at an advantage if the other parties have not engaged a lawyer.
  5. It may also be the case that one party has a financial advantage and is able to engage more than one lawyer. Sub-section (2) is explicit by prohibiting the appearance of more than one lawyer for a party when a petition is being dealt with and heard in court. However, there is nothing that prohibits a party from consulting more than one lawyer. It is just in court at the bar table where a party is prohibited from being represented by more than one lawyer.
  6. A further reason for strict compliance with the requirement to set out the facts relied on to invalidate the election or return stems from the fact the Organic Law and Rules do not provide for the provision of particulars of the facts pleaded in the petition. In other forms of civil actions or proceedings in the National Court, procedures are provided in the rules of the National Court for a party to file a request for particulars of the claim or defence and for the party affected to provide such particulars or state why they will not comply with the request for particulars and there is also procedure available for a party to seek orders of the court to force a party to provide particulars. There are no such procedures available to parties in an election petition.
  7. Section 208(e) of the Organic Law states a petition shall be filed within forty days after the declaration of the result. The next step in the process is the opportunity given to the respondents to file objection to the competency of the petition within fourteen days of service of the petition. Strict timelines are provided and it has been repeatedly said that petitions must be expeditiously dealt with to ensure duly elected members of parliament are not stuck in the courts for long periods. The term of office is five years and protracted litigation can keep a member of parliament away from his core function. Further the disgruntled candidate can always wait for the next opportunity to stand for public office in five years time. Further where there are serious illegal practices including bribery and undue influence, there is nothing stopping prosecution of such offences as provided by section 215(2) of the Organic Law.
  8. I repeat what I said in my decision in EP No. 67 of 2012 Alphonse Moroi v. Kila Haoda and Electoral Commission on 14 March 2013 at paragraphs 20 to 24.

"20. Firstly, a challenge to a return is a challenge to the mandate of the majority of the people or electors freely given to their person of choice to represent them in the National Parliament. The National Parliament is the legislature and one of the three arms of government, the other two arms of government being the executive and the judiciary. Every five years, the citizens of Papua New Guinea get one opportunity to have their say in who should represent and speak for them in the legislature. The people, through their representatives then choose who should run or administer the country through the executive or national government. That is why the courts have wisely said a challenge to a return is a serious matter and as such, anyone seeking to exercise the right to challenge a return must in essence be efficient in their approach by ensuring their petition is properly drafted and filed in strict compliance with law. The applicable laws are the Organic Law on National and Local Level Government Elections and the rules of court being the National Court Election Petition Rules and the Supreme Court Election Petition Review Rules.


  1. The common saying "time is of essence" is of absolute relevance. When an elected representative is brought to court to answer a petition disputing the validity of his election, the member's attention is taken away from performing his key function and that is to duly and efficiently represent the people of the electorate generally and specifically when sitting as representative of his people in the National Parliament. The emphasis here is the people's legitimate expectation that the elected member diligently perform his duty without undue and protracted interference. It is thus the Court's function to ensure that the relevant laws are strictly observed by a person challenging the return.
  2. Secondly, as to a petition alleging bribery, that is also a very serious matter. The allegation in itself is serious and should not remain untested for a protracted period. Such an allegation taints the reputation and standing of an elected leader so it affects the leader immediately in terms of his performance as a representative of the voters in the electorate and his standing both within and outside of the country. Further, if an allegation of bribery is proved on the hearing of a petition in the court of disputed returns, the National Court has no discretion but to declare that election void. Section 215(1) of the Organic Law on National and Local Level Government Elections is in mandatory terms and no other penalty is provided.
  3. Further still, Sub-section (2) of Section 215 of the Organic Law also states a finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice. If an allegation of bribery is proved and a criminal conviction recorded under section 103 of the Criminal Code, the offender is liable to a penalty of a fine of K400 or imprisonment for a term not exceeding one year. There are further serious consequences where the offender is a member of parliament. Under section 104, his seat is vacated and for three years he becomes incapable of being registered as an elector or voter thus he is incapable of nominating to stand for elections.
  4. So a sitting member of parliament faces more serious consequences if he is convicted of an offence of bribery under the Criminal Code. Not only does he lose his seat in the National Parliament but he could be imprisoned for up to one year. He also loses his Constitutional right to vote and is barred from standing for election. Further still, they are incapable of holding judicial office".
  5. I will now deal with the objections to the competency of the petition filed by Parkop and the EC.
  6. Firstly, Parkop challenges the competency of the petition as an originating process in terms of its form as filed. The EC did not support this contention.
  7. Parkop says the petition was not filed in accordance with section 208(e) of the Organic Law in that "the petition cannot be said to have been filed as it does not contain the endorsement with the signature of the National Court Registrar". This was set out in the objection filed by Parkop.
  8. This is the same argument which was raised by Parkop in response to the petition of Wari Vele. I rejected that argument in my judgment in EP No. 103 of 2012. Wari Vele v Powes Parkop and Electoral Commission of 8 November 2013. There is no reason to change my view and I repeat below the relevant paragraphs numbered 34 to 41 inclusive of my judgment.

"27. In Parkop's submissions he advances his argument by saying "the Petition does not have the signature of the Registrar or the next competent person provided under the Election Petition Rules. The petition has not been attested or endorsed by the Registrar or the next competent person."


  1. Parkop relies on Rule 2(2) of the National Court Election Petition Rules 2002 which provides "For Port Moresby, all petitions are filed at the Waigani Registry with the Registrar of the National Court and in all other places; petitions are filed with the Clerk of Court, except in the registries established under the National Court Act where they are filed with the Assistant Registrar." I have underlined the words "with the Registrar" which are the words that Parkop alleges to mean "naturally that the Registrar has to check the petition and sign the petition and impress the court seal. He cannot simply impress the seal. Anybody can impress the seal. The signature authenticates the filing at the Registry before the Registrar."
  2. I am not convinced that this interpretation by Parkop holds any serious weight. To read in such a prescription would be reading in what is not in fact stated or intended in the rule referred to. I am not convinced that it is open to this court to make such an interpretation. This would have to be a matter for the Rules Committee and not one for interpretation in the manner proffered by Parkop.
  3. Further, there is nothing in the Organic Law that requires the Registrar's signature on the petition. In this regard, I agree with Mr Lai's submissions for Vele and also find solid basis in the judgement in Review Pursuant to Constitution Section 155(2)(b); Sauk v Polye and Electoral Commission [2004] SC 769 where the Supreme Court said "In respect of the first ground of the competency challenge, we hold section 206 Organic Law only stipulates the method by which an election or its return can be challenged in the National Court. We accept the applicant's submission that the stipulated method is by petition "addressed, directed, dispatched or presented to the National Court and no other tribunal". This provision contains no other conditions requiring strict compliance as to the form a petition shall take. Nor, indeed, do the Organic Law or the National Court Petition Rules. Section 208 of the Organic Law alone sets out the essential matters that must be provided for in a valid petition invoking the jurisdiction of the National Court".
  4. Parkop also seeks to draw analogy to the signature of the Registrar appearing in originating process filed pursuant to the National Court Rules such as a Writ of Summons and Originating Summons but this is clearly a misconception.
  5. Firstly, the National Court Rules contain prescribed forms for a Writ of Summons and an Originating Summons and provides that such originating process must be in such form and no other. In those originating processes, the claim of the plaintiff is set out in the statement of claim while the command to the defendant to do an act within a specified time for example to file and serve notice of intention to defend within thirty days of service of the writ is a command set out in the writ which is signed by the registrar and the National Court Rules spell out the foundation for that. That is a command of the court through the registrar. On the signing of the writ by the registrar with the seal affixed, that document becomes a legal document. The consequence of default judgement in the event of a failure to comply by the defendant has foundation from the writ containing the signature of the registrar and having the seal of the court affixed. Without that, the writ has no significance.
  6. There is no prescribed form of a petition in the National Court Election Petition Rules 2002. These rules provide for a Form 1 Notice to Appear which is required of the respondents to the petition which would ordinarily include the EC and the declared member elect. Then there is Form 2 Notice of Date, Time and Venue for Directions Hearing which does contain provision for the signature of the Registrar. That is naturally the case as it is the Registrar who allocates the date, time and venue for the directions hearing in consultation with the Judge Administrator for election petitions and any non-attendance by a party may carry a consequence including costs or even dismissal of the petition in accordance with the rules.
  7. This objection raised by Parkop is dismissed".
  8. The other arguments raised by both Parkop and the EC are similar. I will not repeat what they say separately in their respective notices and submissions but I will address the issues raised as they relate to the separate grounds of the petition.
  9. Parkop' objection challenges the competency of all grounds of the petition. Although the EC's objection challenges all grounds except the ground of bribery in paragraph 11, their submissions do address the ground of bribery. Kandiu's lawyer did not object to submissions being made by the EC that concerned the grounds of bribery in paragraph 11 of the petition so I will consider all submissions made by Parkop and EC. I have also considered the submissions of Kandiu.

Bribery

  1. The grounds of bribery are pleaded in paragraph 11.
  2. The introduction to this pleading is in very general terms where it states "prior to and during commencement of polling on Tuesday 26th and Wednesday 27th June 2012" Parkop and or his "servants and agents" committed several acts of bribery with the knowledge and authority of Parkop to "induce voters to vote for" Parkop and with the intention to interfere in the free and fair voting in breach of section 103 of the Criminal Code. This part of the pleading is very generalised and devoid of certainty as to the critical elements of the allegation about when the act of bribery took place, the identity of the servant or agent of Parkop and the description of the actual act of bribery. Further, there are no facts pleaded as to the alleged acts being committed with the knowledge and authority of Parkop.
  3. The pleading of paragraph 11 then proceeds to describe separate and distinct cases.
  4. In Case 1, it is claimed that on 14 June 2012, a John Del gave twenty kina cash to a Stella Kaupa as inducement to vote for Parkop and it is also claimed Stella Kaup did vote for Parkop. Further, it is claimed Del gave twenty kina cash to a Brenson Kaupa Wera as inducement to vote for Parkop.
  5. It is also claimed that on 13 June 2012, Del was given twenty thousand kina cash to distribute to voters as inducement to vote for Parkop. It is unclear as to whether it was Parkop or Justin Tkatchenko ("Tkatchenko") who gave the twenty thousand kina to Del. This pleading must be clearly made to connect Parkop to the action of the money being given to Del. Tkatchenko was also a candidate in the election but for the electorate of Moresby South. The pleading is that Parkop and Tkatchenko "met all his campaign co-ordinators" including Del and gave Del twenty thousand kina to "distribute to voters" as inducement to vote for Parkop. Did they meet campaign co-ordinators for Parkop? Did they meet campaign co-ordinators for Tkatchenko? Or did they meet campaign co-ordinators for both Parkop and Tkatchenko? Further, which voters were the targets for inducement to vote for Parkop, supporters for Parkop or supporters for Tkatchenko? This is unclear and ambiguous.
  6. It is claimed the money was given to Stella and Brenson by Del. The petition must clearly plead facts that demonstrate that the money was given by that person with Parkop's "knowledge and authority". As stated above the pleading is unclear and ambiguous for the reasons stated.
  7. As stated above, the introduction to paragraph 11 merely asserts the acts of bribery were committed by Parkop's "servants of agents" commonly referred to as campaign coordinators with the knowledge and authority of Parkop. That is very general and insufficient.
  8. If the money was given to John Del by Tkatchenko, without Parkop's knowledge and authority, then section 215(3) of the Organic Law applies. That is, to find that Parkop was not duly elected, the petition must also plead further facts that "the result of the election was likely to be affected; and it is just that the candidate should be declared not to be elected; or the election should be declared void." No such facts are stated.
  9. As it stands, paragraph 11 Bribery case 1 is unclear and leaves the Respondents with uncertainty as to the pleading and the case being mounted by Kandiu which they will have to prepare for in response. As such, paragraph 11 Bribery case 1 is incompetent as failing to meet the requisites of section 218 of the Organic Law.
  10. In Case 2, it is claimed that on 27 June 2012, a Don George gave fifty kina cash and betelnuts and cigarettes to a Albert Minape as inducement to vote for Parkop and it is also claimed Albert Minape did vote for Parkop.
  11. It is also claimed that on 24 June 2012, Parkop gave Don George two thousand kina cash "to buy votes" for Parkop. The actual words allegedly said by Parkop to Don George are stated in quotations in the pleading as "I will give you K10, 000.00. But right now I am giving you K2, 000.00 to use during the polling. The balance of K8, 000.00 will be paid to you at a later date."
  12. The pleading is deficient for a number of reasons. At the most, the pleading asserts Parkop said to Don George "... i am giving you K2, 000 to use during the polling. ...". That could mean use the money to transport and feed scrutineers, a perfectly proper use of funds at elections. The assertion that Parkop gave Don George two thousand kina cash to buy votes for Parkop is not supported on the very statement relied on by Kandiu as being the instruction as to how the money was to be used or handled by Don George
  13. This pleading is also unclear in a number of important respects. It is alleged Don George gave cash of seven hundred kina to Eraman Mandai who then "distributed this sum around polling booths at Morata and lured voters to cast their votes" for Parkop. The polling booths are not identified in the pleading. There must have been many polling booths in Morata. Neither does the pleading state how Parkop or indeed Kandiu himself fared when the ballot papers from the polling booths in Morata were counted either as first preferences or at any other stage through to elimination.
  14. If the money was given to Albert Minape by Don George without Parkop's knowledge and authority, then section 215(3) of the Organic Law applies. That is, to find that Parkop was not duly elected, the petition must plead further facts that "the result of the election was likely to be affected; and it is just that the candidate should be declared not to be elected; or the election should be declared void." No such facts are stated. The pleading is also deficient in this regard and cannot proceed.
  15. Paragraph 11 Bribery case 2 is incompetent as failing to meet the requisites of section 218 of the Organic Law.

Illegal practice


  1. The grounds of illegal practice are pleaded in paragraphs 12 to 29 of the Petition. The phrase "illegal practice" has a restricted meaning as provided under the Organic Law section 178 and the Criminal Code sections 105 and 106 per Injia J (as he then was) in Mune v Agiru (1998) SC 606. Each instance claimed to fall within the definition must be clearly pleaded. Section 215(3) of the Organic Law provides that where it is alleged the illegal practice, other than bribery or undue influence, was committed by a person other than the winning candidate, the petition must also plead such illegal practice was committed with the knowledge and authority of the winning candidate. Further, the petition must also plead further facts that show that "the result of the election was likely to be affected; and it is just that the candidate should be declared not to be elected; or the election should be declared void." See also Koimarea v Sumunda (2003) N2421 and Amet v Yama (2010) SC1064.
  2. The illegal practice Case 1 is pleaded in paragraphs 12, 13 and 14 where it is alleged named servants or agents of Parkop, including a Mr Aloysius Ali, marked several ballot papers for Parkop and inserted them into a certain ballot box and delivered that ballot box to the counting hall. It is also claimed the named servants or agents including Mr Aloysius Ali then met Parkop where they were given money totalling Twenty Thousand Kina of which Five Thousand Kina was received by Mr Aloysius Ali who later made a public statement about that which was reported in the media. Kandiu alleges Parkop and his agents and servants are in breach of sections 191 and 215(3) of the Organic Law and that the actions complained of did affect and /or were likely to affect the election result.
  3. Kandiu's pleading is that "several" ballot papers were unlawfully marked. The pleading fails to state the exact number of ballot papers unlawfully marked. Further, the pleading fails to state whether the ballot papers unlawfully marked were in fact counted, whether or not objection was raised by scrutineers at counting. This pleading is vague and does not assist the Respondents and the court in assessing whether the illegal practice, if proven, would have affected the result of the election. The pleading in paragraph 14 of the petition that the "actions did affect and/or likely to have affected the results of the election and return of the First Respondent as winner." is a bare assertion without any factual foundation as to how the illegal practice complained of did affect or was likely to have affected the results of the election and return of Parkop. This is a failure to plead facts that would constitute a valid ground for invalidating the election of Parkop.
  4. The illegal practice Case 2 is pleaded in paragraphs 15 and 16, where it is alleged polling took place at a particular polling booth but when the ballot box identified as containing ballot papers from the particular polling booth was presented for counting, objections were raised by scrutineers as the inner and outer seals to the ballot box were broken. Following objections raised by scrutineers, it is alleged the Moresby North West Returning Officer Mr Joseph Fraghi destroyed the ballot papers from the said ballot box by burning them in full view of officials, scrutineers and members of the public. Kandiu alleges this action by Mr Joseph Fraghi was illegal and in breach of section 215(3) of the Organic Law.
  5. The action of the Returning Officer in burning the ballot papers was illegal. There can be no argument about that. No law permits such action. Kandiu may be correct in saying the burning of the ballot papers was "unusual" and possibly "unprecedented" but to say such action was in breach of section 215(3) of the Organic Law is not a logical submission for obvious reasons. This is clearly a poorly drafted pleading and cannot stand.
  6. The pleading asserts the objection to counting of the ballot papers was raised by scrutineers after they observed the seals on the ballot box were broken. In such a situation, under section 153A of the Organic Law, the Returning Officer has the discretion to set aside or reject the ballot box from scrutiny. On the pleading made, there is no assertion that the decision of the Returning Officer to exclude the ballot papers from scrutiny and counting was wrong. The pleading is deficient and does not constitute a valid ground for invalidating the election of Parkop.
  7. Further, this allegation of "illegal practice" could only proceed on the petition pleading further facts that "the result of the election was likely to be affected; and it is just that the candidate should be declared not to be elected; or the election should be be declared void." The pleading is deficient in this regard and cannot proceed.
  8. The illegal practice Case 3 is pleaded in paragraphs 17 and 18, where it is alleged the NCD Deputy City Manager Honk Kiap ("Kiap") was heavily involved in various unlawful actions that had the effect of influencing the outcome of the election and return of Parkop. Kandiu claims these actions were executed with the knowledge and authority of Parkop. Kandiu claims the actions complained of were tantamount to the commission of an illegal practice with the meaning of section 215(3) of the Organic Law.
  9. This pleading is made up of general assertions and lacks details to constitute a valid ground for invalidating the election of Parkop. The pleading lacks essential facts as to the dates and times, locations including identifying polling booths affected specific to the individual incidents that would be capable of identifying irregularities or errors and omissions on the part of the EC.
  10. Further, the pleading in paragraph 18 of the petition that the matters complained of affected "the result and/or likely to have affected the results and return of the First Respondent as winner of the said electorate." is a bare assertion without any factual foundation as to how the illegal practice complained of did affect or was likely to have affected the results of the election and return of Parkop. This is a failure to plead facts that would constitute a valid ground for invalidating the election of Parkop.
  11. The illegal practice Case 4 is pleaded in paragraphs 19 to 23 inclusive, where it is alleged a group of policemen, some reservists attached with NCD Commission including Kiap entered two particular polling areas in the suburb of Gerehu and caused disturbance to polling by actions that caused obstruction, influence and intimidation to voters. That resulted on the premature closure of one polling booth and over fifty percent of voters in the polling area left in fear and did not vote. Further, it is claimed eight hundred and fourteen unused ballot papers remain unaccounted. Kandiu claims this was his stronghold. Kandiu claims the actions complained of were done with the knowledge and authority of Parkop within the meaning of section 215(3) of the Organic Law.
  12. The pleading that over 50% of registered voters left the polling area and did not vote is a generalised statement. There is a bare assertion that the persons who are alleged to have caused the disruption also caused 'influence and intimidation upon the voters to vote in a particular manner in favour of the First Respondent." There are no basic facts pleaded stating the actions of the alleged wrongdoers. Further, there are no basic facts pleaded to ground the assertion that the voters were forced to vote in favour of Parkop. This is a serious claim but the pleading requires details or facts that form the basis of the assertion. The pleading then makes reference to the number of unused ballot papers as evidence of the number of eligible voters chased away from the polling booth. That is a generalised statement that does not constitute a valid ground for invalidating the election of Parkop.
  13. Further, this allegation of illegal practice could only proceed on the petition pleading further facts that "the result of the election was likely to be affected; and it is just that the candidate should be declared not to be elected; or the election should be declared void." The pleading is deficient in this regard and cannot proceed.
  14. The illegal practice Case 5 is pleaded in paragraphs 24, 25 and 26, where it is alleged polling was not conducted at a particular polling booth at Bomana Kerepia Barracks. Kandiu claims six hundred and twenty five registered voters were denied their right to vote, a right that is provided under section 50 of the Constitution. Kandiu alleges Kiap and other policemen hijacked the designated ballot box and marked all the ballot papers and delivered the ballot box to the counting venue. Despite objections from scrutineers for Kandiu and other candidates, the ballot papers were counted. Kandiu then alleges the ballot papers were found in another "undesignated and ungazetted" ballot box. Kandiu claims the actions complained of were done with the knowledge and authority of Parkop and is tantamount to the commission of an illegal practice within the meaning of section 215(3) of the Organic Law.
  15. The pleading is that polling did not take place on a certain date and "all registered voters gathered" at the polling booth but polling did not take place. To claim that all registered voters had attended is a generalisation without any factual foundation.
  16. Then there are two claims of illegal practice, the first is the alleged hijacking of the ballot box and the second is the unauthorised marking of ballot papers. These are serious allegations but the pleading must contain further facts to warrant consideration as a valid ground to be heard. There are no facts alleged as to where the hijacking took place and the person or official from whom the ballot box and papers were taken. These are facts that the EC in particular could check and verify. Further, the pleading does not state basic facts but makes the generalised assertion that the alleged illegal practices "were done with the knowledge and authority of the First Respondent."
  17. Once again, this allegation of illegal practice could only proceed on the petition pleading further facts that "the result of the election was likely to be affected; and it is just that the candidate should be declared not to be elected; or the election should be declared void." The pleading is deficient in this regard and cannot proceed.
  18. The illegal practice Case 6 pleaded in paragraphs 27, 28 and 29 is similar to Case 4, where it is alleged a group of policemen, some reservists attached with NCD Commission including Kiap entered a particular polling area at Jack Pidik Park and caused disturbance to polling by actions that caused obstruction, influence and intimidation to voters. It is alleged voters were chased away and the perpetrators then marked the ballot papers. Kandiu claims his scrutineer protested against these alleged actions and was assaulted by the perpetrators. Six hundred and thirty nine votes were affected. Kandiu claims the actions complained of were done with the knowledge and authority of Parkop and amount to illegal practice within the meaning of section 215(3) of the Organic Law.
  19. There is a bare assertion that the persons who are alleged to have caused the disruption also caused 'influence and intimidation upon the voters to vote in a particular manner in favour of the First Respondent." There are no basic facts pleaded stating the actions of the alleged wrongdoers. Further, there are no basic facts pleaded to ground the assertion that the voters were forced to vote in favour of Parkop. This is a serious claim but the pleading requires detailed facts to form the basis of the assertion. The pleading then states "A total of 639 votes were affected by the conduct of persons named herein." That is a generalised statement without any stated basis. The pleading does not constitute a valid ground for invalidating the election of Parkop.
  20. Further, this allegation of illegal practice could only proceed on the petition pleading further facts that "the result of the election was likely to be affected; and it is just that the candidate should be declared not to be elected; or the election should be declared void." The pleading is deficient in this regard and cannot proceed.

Errors and omissions of electoral officials


  1. Section 218 of the Organic Law provides that an election cannot be avoided on account of a delay in the return of the writ or on account of an error of, or an omission by, an officer which did not affect the result of an election.
  2. In considering whether a valid ground or argument is made out, this court must first ascertain whether an error or omission is made out in the petition and then whether such error or omission affected the result of the election.
  3. In the conduct of elections, including counting, the functions, powers and responsibilities of officers of the EC are as prescribed specifically by the electoral laws. In this case, the essential law is the Organic Law on National and Local Level Government Elections. In general, officers of the EC are also bound by all other laws including the Criminal Code and the Constitution.
  4. In Sai-Sail Beseoh v Yuntivi Bao (2003) N2348, Injia J, as he then was said "Section 218 has two parts. First, the delay error or omission of electoral officers must be clearly pleaded and second, the petition must demonstrate how that delay, error or omission did affect the result of the election. Mere pleading delay in the polling and errors and omissions will not suffice."
  5. A failure to plead the facts distinctly or properly is tantamount to a failure to comply with section 208(a) of the Organic Law. The observations of Kandakasi J in Ijape v Kimisopa (2003) N2344 are pertinent;

"In my view, these authorities make it clear that a petitioner is under an obligation to set out the facts he relies on to invalidate an election, with precision and clarity. He must not leave the court and the respondents to the petition guessing as to what is being alleged. Where a petition relies on a breach of a statutory or constitutional duty, that provision must be set out besides the alleged facts. A petition could stand on either one or more grounds. As such, each ground of a petition must be clearly pleaded together with any relevant provision of a statute or the constitution by setting out the facts relied on. ... it is not for the court and the parties to work out what is really being alleged by the petitioner. If the court were to read a petition as one without being indicated in the petition, it would have the effect of amending a petition which is not possible by reason of section 208(e) ..."


  1. The grounds of Errors and Omissions by EC officers are pleaded in paragraphs 30 to 56 of the Petition.
  2. The error and omission of electoral officials Case 1 is pleaded in paragraphs 30 to 38 inclusive, where it is alleged the electoral officials at the Moresby North East Electorate Counting Centre refused to admit to the counting process twelve ballot boxes from the Six Mile Ward Area. These twelve ballot boxes allegedly contained a total of 9,813 ballot papers. The decision to refuse to count was made by electoral officials on the complaint of a candidate in the Moresby North East Electorate Noel Anjo who subsequently withdrew his complaint but the decision to refuse to count was maintained by electoral officials. Kandiu claims the number of ballot papers affected being 9,813 exceeds the difference in votes at the final count and declaration between Parkop and the runner-up Wari Vele.
  3. At paragraph 9 of the petition, it states the winning margin was 3,977. Kandiu claims this error and omission affected the result of the election within the meaning of section 218 of the Organic Law.
  4. Kandiu claims the mandatory procedure under section 153A of the Organic Law was not followed in rejecting the twelve ballot boxes from scrutiny. When perusing section 153A, the procedure provided is not in mandatory terms but clearly provides the returning officer with the discretion by the use of the term "may". The procedure would be a mandatory requirement if the term used in section 153A was "shall' or "must".
  5. Further, the returning officer followed or complied with a decision of the Electoral Commission as he is required to do. The returning officer has no discretion and he correctly followed the decision or direction of the Electoral Commission.
  6. Any challenge would have to be couched in terms that challenge the exercise of discretion by the returning officer and/or the Electoral Commission. Kandiu claims the directions of the Electoral Commission "were in general terms and vague without setting out the reasons under which they have formed the opinion that the 12 ballot boxes were tempered with and the integrity ballot marked papers in them were compromised." This pleading is vague and too general and fails to disclose where the Electoral Commission fell into error in the exercise of its discretion in rejecting the twelve ballot boxes from scrutiny. This ground is incompetent.
  7. The error and omission of electoral officials Case 2 as pleaded in paragraphs 39, 40 and 41, where it is alleged the presiding officer at a polling booth in Pari Village failed to initial the back of ballot papers cast by voters in the polling area, the total affected was five hundred and six ballot papers. Those ballot papers were all declared informal. Kandiu claims this error and omission by the polling booth presiding officer was a "deliberate act to sabotage or annul the election results..." Kandiu claims this error and omission affected the result of the election within the meaning of section 218 of the Organic Law.
  8. Section 153(1)(a) of the Organic Law provides a ballot paper is informal where "it is not authenticated by the initials of the presiding officer or by an official mark as prescribed." A number of people failed to do their job at polling. It is the presiding officer's role to initial the ballot papers as required by section 153(a). It was also the other polling officials' duty to inspect the ballot paper and ensure that it was authenticated appropriately. Likewise, scrutineers for candidates failed in their responsibility to their respective candidates. But this all presupposes the correct ballot papers were presented for scrutiny when the ballot box was presented and opened for scrutiny and counting. No facts are pleaded to mount such an assertion.
  9. Further, the pleading is that 506 ballot papers were affected. At paragraph 9 of the petition, it states the winning margin was 3,977. This error could not have affected the result of the election. This ground is incompetent.
  10. The error and omission of electoral officials Case 3 is pleaded in paragraphs 42, 43 and 44, where it is alleged polling at the Morata 3 Brian Bell polling booth did not take place on the day scheduled for polling in that location. It is claimed the ballot box for that polling booth was hijacked by Kiap and other servants and agents of Parkop and they marked ballot papers, allegedly with the consent and authority of Parkop. Despite objections raised by scrutineers for Kandiu and other candidates, the seven hundred and nine ballot papers retrieved from that ballot box were counted. Kandiu claims this error and omission affected the result of the election within the meaning of section 218 of the Organic Law.
  11. The submissions of the EC comprehensively address this pleading which are accepted. The implication is that there was no proper polling but the petition itself contains statements that contradict this. In Row 21 of the table on page 22 of the petition, the data states that polling was conducted from 10am to 5:10pm, there were 1120 eligible voters registered for that polling area, 709 ballot papers were used and 417 ballot papers were returned unused. This contradiction appears from Kandiu's own pleading or on the face of the petition.
  12. Returning to the primary pleading, it basically asserts there was a duty on the part of the EC to securely handle and store ballot boxes. To mount a claim of error and omission on the part of the EC, the pleading must not only assert that there was a failure in the EC's performance of that duty but the pleading should logically set out details of the failure. Here the pleading just states that the ballot box was hijacked. The EC concedes it has a duty to do its utmost to preserve the integrity of the electoral process. Any challenge to its performance would have to plead that there was recklessness or blatant carelessness or negligence on the part of officers of the EC in the performance of their functions and responsibilities. The petition does not plead facts that allude to or address this.
  13. The contradiction on the face of the petition as stated above renders this pleading incompetent.
  14. The error and omission of electoral officials Case 4 is pleaded in paragraphs 45, 46 and 47, where it is alleged that ballot papers from a polling booth at Vanama Settlement contained three different signatures on the back of all three hundred and ninety nine ballot papers instead of the single signature of the presiding officer. Despite objections raised by scrutineers for Kandiu and other candidates, all three hundred and ninety nine ballot papers were admitted as formal and counted. Kandiu claims this failure to allow scrutiny and verification during counting as required by sections 126 and 153(1)(a) of the Organic Law was a deliberate act and an error or omission on the part of electoral officials. Further, Kandiu claims the action on the part of the presiding officer at the polling booth was an error and omission that affected the result of the election within the meaning of section 218 of the Organic Law.
  15. Section 126 provides the ballot paper must be initialled by the presiding officer. All 399 ballot papers contained three different signatures. The pleading does not say that the presiding officer did not initial the ballot papers. So on a liberal reading of section 153(1)(a), the requirement has been complied with and no argument can be mounted under this provision.
  16. The issue raised is that there were three initials on the ballot paper and, even though it is not specifically stated, it can be assumed from the pleading that one of those three initials belonged to the presiding officer. In fact the pleading does not claim that the presiding officer did not initial the ballot papers.
  17. Section 153(5) states 'a ballot paper shall not be informal for any reason other than a reason specified in this section." The reasons are set out in sub-paragraphs (1), (2), (3) and (4) of section 153. I have dealt with subsection (1). Sub-sections (2), (3) and (4) cover the manner in which a ballot paper may be marked indicating the voter's preferences. The pleading does not concern the marking of voter preferences on the front of the ballot paper. The pleading concerns markings on the back of the ballot paper. That pleading or argument is not covered in any of the reasons set out in sub-paragraphs (1), (2), (3) and (4) of section 153.
  18. One other significant consideration is the fact the initialling on the back of the ballot paper was consistent with all ballot papers from the polling area. The method of authentication with three initials was consistent for all ballot papers and not a portion of ballot papers from the polling area. Further to this, there is no suggestion the ballot papers were marked for just one candidate or for Parkop alone. That would give rise to concern as to the integrity of polling in that polling area. But no pleading of such nature is made.
  19. The issue for consideration is whether the ballot papers counted for the polling area were authentic or not. The facts pleaded fail to establish that the ballot papers were not authentic.
  20. The error and omission of electoral officials Case 5 is pleaded in paragraphs 48 to 53 inclusive, where it is alleged that at the end of the primary count, scrutineers noted discrepancies in total figures recorded for Parkop between the figures posted during quality checks and figures posted in the actual count after the quality checks from ballots counted from the Moresby North West Open Seat and the Moresby North East Open Seat. Kandiu claims the difference in the figures posted was 1,407 votes and despite this discrepancy and objections from scrutineers for Kandiu and other candidates, electoral officials refused to subtract the difference from Parkop's tally. This was also noted when counting for the Moresby South Open Seat were counted revealing a difference of 250 votes but again despite objections, the tally for Parkop was not reduced. Kandiu claims the action of these electoral officers was an error and omission that affected the result of the election within the meaning of section 218 of the Organic Law.
  21. The first thing to note is that this pleading is based on a table produced by Kandiu as being the figures and data recorded at the count. It does not state that these are figures or data taken from official records of the EC at the relevant time. This gives rise to the question as to the reliability and authenticity of the figures and data relied on and produced by Kandiu.
  22. The EC points out one discrepancy in the table relied on and produced by Kandiu where on the first line or row in the table "total after end of preliminary count" the grand total of the first three figures (12,504 + 8992 + 6494) is incorrectly stated as 28, 684 whereas the correct figure is 27,991. This table of figures and data is unreliable.
  23. Reading paragraph 48 and 49, there is no explanation to the claim that "there was a massive difference of 1,407 votes wrongly added" to Parkop's tally. This could be stated by reference to figures from each open electorate but that is not provided.
  24. Going to paragraphs 51 and 52, the table clearly explains the argument but, in the result will the error or omission affect the result of the election. The total number of votes affected is 250. The winning margin is claimed to be 3,977. On this ground alone, the result will not be affected. This ground will now depend on the survival of the remaining grounds in the petition.
  25. The error and omission of electoral officials Case 6 is pleaded in paragraphs 54, 55 and 56, where there is a general claim that there was widespread movement of ballot papers and boxes between different polling areas, there was premature closure of polling, there was lack of police security with transportation of ballot boxes and papers, changes made to polling places, there was confusion for voters moving from polling places in search of their names on the common roll. This resulted in only 47.5 percent turn-out of voters at polling. Tables containing details are provided. Kandiu claims these were deliberate errors and omissions on the part of electoral officials that affected the result of the election within the meaning of section 218 of the Organic Law.
  26. The essential facts for this ground are pleaded in paragraph 54 but they are general statements. They do not state facts that specify instances of errors and omissions. I underline the words that emphasise how generalised the statements are in each sub-paragraph of paragraph 54 which require basic details or particulars to warrant further determination:

Undue influence


  1. The undue influence Case 1 is pleaded in paragraphs 57 and 58, where it is alleged Parkop through his servant or agent Ned Gong gave to Robert Puli a letter dated 10 May 2012 with one thousand kina in cash which influenced Robert Puli to vote for Parkop. Kandiu claims this is an act of undue influence within the meaning of section 215(3) of the Organic Law and section 102 of the Criminal Code.
  2. The pleading does not assert that the action of Gong was made with the knowledge and authority of Parkop so it is assumed the allegation is that the action of Gong was made without the knowledge and authority of Parkop. The provisions of section 215(3) of the Organic Law apply which are that the petition must plead that the "result was likely to be affected" and that "it is just that Parkop should be declared not to be duly elected" or that "the election should be declared void".
  3. Firstly, the claim is that the action of Gong influenced Puli to vote for Parkop. Should there be a finding of undue influence, only one vote would have been affected. This does not affect the result of the election. At paragraph 9 of the petition, it states the winning margin was 3,977. This error could not have affected the result of the election. Further, there is no pleading of facts that Parkop should be declared not to be duly elected or that the election should be declared void. This ground is incompetent.
  4. The undue influence Case 2 is pleaded in paragraphs 59, 60 and 61, where it is alleged Parkop through his servant or agent Don George gave to Moris Muno a payment voucher. Kandiu claims Moris Muno voted for Parkop even though he never received any money from Parkop. Kandiu claims this is an act of undue influence within the meaning of section 215(3) of the Organic Law and section 102 of the Criminal Code.
  5. The pleading does not assert that the action of Don George was made with the knowledge and authority of Parkop so it is assumed the allegation is that the action of Don George was made without the knowledge and authority of Parkop. The provisions of section 215(3) of the Organic Law apply which are that the petition must plead that the "result was likely to be affected" and that "it is just that Parkop should be declared not to be duly elected" or that "the election should be declared void".
  6. The claim is that the action of Don George influenced Moris Muno to vote for Parkop. Should there be a finding of undue influence, only one vote would have been affected. This does not affect the result of the election. At paragraph 9 of the petition, it states the winning margin was 3,977. This action of Don George could not have affected the result of the election. Further, there is no pleading of facts that Parkop should be declared not to be duly elected or that the election should be declared void. This ground is incompetent.
  7. There are no grounds remaining to go to trial.
  8. The petition is dismissed with costs to the Respondents.
  9. The formal orders of the court are:

Judgment accordingly


________________________________________________________________
Korowi Lawyers: Lawyers for the Petitioner Dawidi Lawyers: Lawyers for the First Respondent
Parua Lawyers: Lawyers for the Second, Third, Fourth Respondents

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