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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO 26 OF 2012
IN THE MATER OF THE DISPUTED RETURNS FOR THE KOROBA LAKE KOPIAGO ELECTORATE
BETWEEN:
JOHN KELEWA KEKENO
Petitioner
AND:
PHILIP UNDIALU
First Respondent
AND:
WAMU WALU IN HIS CAPACITY AS RETURNING OFFICER FOR THE KOROBA LAKE KOPIAGO ELECTORATE
Second Respondent
AND:
ANDREW TRAWEN IN HIS CAPACITY AS THE ELECTORAL COMISSIONER FOR PAPUA NEW GUINEA
Third Respondent
AND:
THE ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent
Tari: Salika, DCJ
2014: 04, 05 & 13 February
ELECTION PETITION – Practice and Procedure – Objection to Competency Application – Requirement to comply with s.208 (a) of the Organic Law on National and Local Level Government Elections – "What are facts" to be stated in a Petition – facts are allegations to be proved at trial.
ELECTION PETITION – Practice and Procedure - Facts not properly pleaded – Too many allegations in one ground not the best approach – no proper pleading consistent with s.215 and 218 of the Organic Law.
Cases Cited:
Delba Biri v Bill Ninkama (1982) PNGLR 432
Holloway v Ivarato (1988) PNGLR 99
Kikala v Mangape And Ors (2013) SC1295
Benias Peri v Nane Petrus Thomas & Ors – Un-Numbered National Court Decision (EP73 of 2003) unreported, 20th April 2004.
Sauk v Polye (2004) SC 769
Counsel:
Mr M Nandi, for the Petitioner
Mr J Haiara, for the First Respondent
Mr R William, for Third & Fourth Respondent
13th February, 2014
1. SALIKA DCJ: BACKGROUND: This is an Election Petition filed by the petitioner on 24 August, 2012 after the results of the National Elections held in the Koroba Lake Kopiago Electorate were declared and the First Respondent Philip Undialu was declared duly elected as the member of Koroba Lake Kopiago Open Seat.
2. The petitioner had been the sitting member for the said electorate for 10 years and it was him that was unseated in that election by the First Respondent. Being aggrieved by alleged irregularities committed mostly by electoral officials and the voting public the petitioner has taken out this petition.
3. The Second Respondent is sued in his capacity as the Returning Officer for the Koroba Lake Kopiago Open seat and as such being a servant and agent of the Electoral Commissioner.
4. The Third Respondent is the Electoral Commissioner responsible for the conduct of the National Elections in 2012 and is sued in that capacity.
5. The Fourth Respondent is the Electoral Commission and is the body constitutionally mandated to organize and conduct National General Elections. It is therefore sued in that capacity.
OBJECTION TO COMPETENCY
6. Objection to competency of the petition have been filed separately by the First Respondent and the 2nd, 3rd and 4th Respondents. However I do note that their respective objections are on the same points and that is non compliance with the requirements of s.208 of the Organic Law on National and Local Level Government Elections.
7. The objections to competency are founded on s.210 of the Organic Law on the National and Local Level Government Elections (Organic Law). Section 210 says:
No proceedings unless requisites complied with.
Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.
REQUIREMENTS UNDER S.208 OF THE ORGANIC LAW
Section 208 says:
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).
8. All counsel have correctly alluded to what the Supreme Court said in Delba Biri v Bill Ninkama (1982) PNGLR 432 that is that an election petition must comply strictly with the requirements of s.208 and 209 of the Organic Law. Any petition that falls short of the requirements required under s.208 and 209 of the Organic Law will render the petition incompetent under s.210 of the same Organic Law.
9. In many election petition cases a bulk of the petitions get dismissed for non compliance with the requirements of s.208 (a) of the Organic Law, that is for the failure to set out the facts relied on to invalidate an election. The Supreme Court in Holloway v Ivarato (1988) PNGLR 99 in trying to define what 'facts' mean said:
The "facts" which must be set out under s 208 (a) of the Organic Law on National Elections 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 proved. The purpose of the pleading 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.
However what is a "fact as required under s.208(a) of the Organic Law "? With the greatest respect to the Supreme Court in the Delba Biri case, the definition of facts has created more problems for many petitioners.
The Collin Shorter Dictionary and Thesaurus defines "fact" as:
"1. Thing known to be true: 2. Deed 3: Reality – factual – as a matter of fact; in fact, in reality or actuality inescapable truth".
The Oxford Advanced Learners Dictionary defines fact as:
The Osborne Concise Law Dictionary Fifth Edition describes it in Latin as "factum probanda" which mean "facts which require to be proved." I think this is the closest description for what is intended and required under s.208(a) of the Organic Law although the second definition by the Oxford Advanced Learners Dictionary is also close to what s.208(a) requires.
10. The "facts relied on to invalidate the election or return" are in reality allegations of facts from the petitioner's point of view or according to information the petitioner has. To me they are "facts" in issue meaning that the petitioner will need to call evidence to prove those "facts in issue" or the allegations. That is what s.208(a) in my respectful view requires the petitioner to set out and state in clear unambiguous words. Those "facts" or allegations of facts or "facts in issue "pleaded must be material facts that are important, significant, pertinent or essential from which the petitioner will later build his case on by calling relevant evidence. The "facts" or "allegations of facts" or facts in issue pleaded must also be relevant to the issues. In my respectful view that is what the Supreme Court in Holloway v Ivarato (Supra) meant by that passage cited earlier.
THE PETITION
11. From paragraphs 3 to 19, I consider those facts to be immaterial and irrelevant. Counsel for the petitioner submitted that those paragraphs set out the background facts or information. To me they are unnecessary and do not add any value to the petition. They just add more confusion unnecessarily to the lengthy petition. Accordingly I strike them out – Paragraphs 3 – 19 are struck out.
12. Paragraphs 20 and 21 of the petition are relevant and should remain. Paragraph 21 in particular sets out the different categories of complaints which I think are helpful to the Court and therefore relevant.
13. However I do have a serious problem with accepting the rest of the petition grounds from paragraphs 21.1.1 to 21.4.1.5 on page 73 of the petition. I have that problem because all the allegations start off by the phrase - "many people including supporters of the First Respondent and or criminals committed illegal practices by destroying the ballot papers for ................ Polling place". These allegations do not state any names of the supporters of the First Respondent. When the respondents raised this point the petitioner's counsel informed the court that the point of the pleading was that as a result of the destruction of the ballot boxes, ballot papers were also destroyed resulting in the voters votes going to waste which resulted in the voters rights being affected and that is, their votes being counted. However this was not what is specifically pleaded. Pleadings must be in its proper context and words.
14. On allegation numbered as 21.1.1.2, the petitioner alleges that the Presiding Officer Johnny Pakuali committed errors and omissions by failing to protect the destruction of the ballot box and ballot papers. It is also alleged that the Fourth Respondent committed an error and made an omission, when it with full peculiar background knowledge of Koroba Kopiago electorate failed to secure adequate police and defence personnel as security for the polling officials and the ballot papers for Mbuli Polling Place. What is the peculiar knowledge that the Fourth Respondent is supposed to have for this electorate? This is speculations.
15. These facts do not disclose what Johnny Pakuali failed to do in not protecting the ballot boxes and papers. As such this makes it difficult for Johnny Pakuali or his employer or master what specific allegations they are to defend. In other words there are no particulars alleged as to his responsibility and what that responsibility is founded on.
16. The drafting of the allegation in the petition is crucial to this petition. This petition is drafted in such a way that evidence is also pleaded in the "facts to support this ground" column. In my respectful opinion evidence is not allowed to be pleaded. This is precisely what has happened in paragraph 2.1.1.1. all the way up to paragraph 21.4.1.5 of the petition.
17. The pleadings are pleaded in such a way that it is very confusing and frustrating for anyone to make any sense out of them. For example in paragraph 21.1.1.3 the allegation is that "as a result of the said illegal practices and the said errors and omissions the 1,358 eligible voters enrolled on the common roll for Mbuli polling place were denied their sacred rights to cast their votes." The proper meaning of this statement is that the voters did not cast their votes. His explanation as to what that pleading meant, counsel for the petitioner said that in actual fact the 1,358 eligible voters did cast their votes but because the ballot boxes and papers were destroyed those ballot papers could not be counted as they were destroyed. This factual allegation is therefore not properly and accurately pleaded.
18. That pleading in paragraph 2.1.1.3 affects the next pleading in paragraphs 2.1.1.4. This pleading is not properly and accurately pleaded. If I accept the pleadings as they are, my conclusion is that it was not just the petitioner who was affected by this irregularity but all the other 22 candidates were affected including the First Respondent and the petitioner.
19. After paragraph 2.1.1.4 is the "facts to support this ground" section. All this does is that it goes into evidence which is not allowed in election petitions.
20. The petitioner then goes to another polling place in South Koroba Local Level Government area. He pleads in paragraphs 2.1.1.2.1, 21.1.2.2., 21.1.2.3 and 21.7.2.4 in similar terms as in paragraphs 21.1.1.1, 21.1.1.2, 21.1.1.3 and 21.1.1.4. This is repeated when he goes to "facts to support this ground" column.
21. The same is repeated in paragraph 21.1.3, similar allegations in similar terms are pleaded in paragraphs 21.1.3.1, 21.1.3.2, 21.1.3.3 and 21.1.3.4. "Facts to support this ground" is repeated which effectively goes into evidence which is not permitted.
22. This is repeated in paragraphs 21.1.4.1, 21.1.4.2, 21.1.4.3 and 21.1.4.4. These series of allegations relate to the first category of allegations relating to the destruction of ballot boxes and ballot papers. The allegations pleaded there are confusing and do not plead accurately the facts to be proved.
DISPUTED BALLOT PAPERS
23. These are the second lot of allegations in this category which the petitioner labeled as Disputed Ballot Papers category. Under this allegation the petition pleads on paragraph 21.2.1.1:
"On the 24th day of June 2012, many people including supporters of the First Respondent and or criminals committed illegal practices by illegally marking the ballot papers for Aluni Polling Place in Lake Kopiago LLG area."
24. This pleading of the facts yet to be proven will be very difficult to defend by the First Respondent because no one particular supporter of his is named. Indeed none of the "many people" are named who illegally marked the ballot papers. So often these types of allegations are made which are difficult to prove or deny. They could be true or they could be false and that is why pleadings must be accurate and properly drafted. To plead the allegation in the general way they are currently pleaded is not helping anyone. It is frustrating to have to speculate what the pleadings mean.
25. The petition then goes on to plead "facts to support the ground." Again here the petition goes into evidence which is not allowed.
26. Paragraphs 21.2.2.1, 21.2.2.2, 21.2.2.3 and 21.2.2.4 make similar allegations but not sufficient particulars are alleged or pleaded. The pleadings then go on to "facts to support this ground" which goes into stating the evidence which is not allowed.
27. The story is the same for paragraphs 21.2.3.1, 21.2.3.2, 21.2.3.3, 21.2.3.1 and once again is a general allegation which cannot be defended by the Respondents. Paragraph 21.2.3.2 alleges the Presiding Officer Alice Bipe committed errors and omissions by allowing underage voters to vote. However, none of the underage persons are named. The Fourth Respondent is alleged to have committed an omission by not providing police and defence personnel on security duties at the Batege Polling Place. The petitioner does not say if providing security is a role given to the Fourth Respondent.
28. Paragraph 21.2.3.3. is confusing in that eligible voters at the Batege Polling Place did vote. They were not denied the right to cast their votes as pleaded. They did vote but the ballot box for that polling place was not allowed for counting. That however is not pleaded properly. As with other grounds the petition then goes on to state "facts to support this ground which in effect again is going into evidence which is not allowed.
BALLOT PAPERS RETURNED UNUSED
29. Paragraph 21.3.1.1. alleges that:-
"On the 23rd day of June 2012, many people including supporters of the First Respondent and or criminals committed illegal practices by tampering with and illegally marking the ballot papers for Maria Polling place in South Koroba LLG area".
This pleading is similar to the other pleadings in the other paragraphs of the petition. Again there is no proper identification of who committed the illegal acts. It alleges that many people including the First Respondents supporters committed the illegal acts. But it also alleges that criminals committed the illegal acts. The pleading of facts is therefore confusing and fails to identify anyone properly.
30. All the grounds under this category - Ballot Papers Returned Unused – are all pleaded in the same fashion. They do not add substance to the petition as pleaded. To save me from addressing each of the grounds separately, I have read each of the grounds in this category and they are all similar. All the pleadings are all similar. All the pleadings are very general. For instance the petition fails to state whether 823 electors were present at the polling place but denied the opportunity to vote. The petition also fails to state what was required to have adequate security and what duties the Fourth Respondent had to protect the ballot boxes. Moreover the petitioner fails to name supporters of the First Respondent who were called to vote. The petition claimed that 823 electors did not vote, but then the petitioner says 823 ballot papers were not counted. This confuses the facts in issue as to whether they voted or not. This is a critical pleading that ought to be properly pleaded.
31. The petition pleads facts as to how and for whom electors were to vote but this type of pleading is not allowed under the Organic Law. This should not be allowed in any election petition.
32. I am disappointed in the way this petition has been drafted in that there may have been good grounds to invalidate the elections in the Koroba Kopiago Electorate but for the way the pleadings have been drafted. The requirements under s.208(a) of the Organic Law are rigid although they are meant to be simple and without the engagement of lawyers. However as the Election Petition laws have evolved to date it has now become very difficult to satisfy the courts of the competency of an election petition.
GENERAL ILLEGAL PRACTICE AND ERRORS AND OR OMMISSIONS
33. In relation to this category of allegation the petition pleads:
"On Sunday 24th June 2012 the presiding officer Jasy Pokopa and polling officials and many others committed illegal practices by illegally allowing people to line up and vote and illegally marking ballot papers for Dolowa polling area."
What was illegal about the polling officials and the Presiding Officer asking people to line up to vote? Who illegally marked the ballot papers? This is not clearly pleaded in that paragraph. It is normal and civilized for voters to line up to vote rather than all gather around the ballot box. This paragraph does not say what the Presiding Officer did with the 314 unused ballot papers but he later says the 314 ballot papers were stolen. He alleges that as a result 314 eligible voters did not vote. Who are those 314 eligible voters who did not vote? Perhaps that is a material piece of fact that needed to be pleaded but was not.
34. The petition further alleges in paragraph 21.4.1.3 that 805 voters enrolled on the common roll for Dolowa Polling place were denied their sacred right to vote as a result of the illegal practice and errors and omissions. Paragraph 21.4.1.4 makes the allegations even more confusing because paragraph 21.4.3 says 805 voters were denied the right to vote. These allegations are confusing and frustrating that I cannot follow the allegations.
35. In paragraph 21.4.1.5 the petition alleges that 491 ballot papers were counted. Then in the "facts in support of this ground" column he alleges that 499 people lined up and shouted the name of the candidate of their choice and that the marking was done by the presiding officer. But this allegation is not pleaded under the paragraphs constituting the grounds. Again the pleadings here are convoluted.
36. In paragraphs 21.4.2.1 it is alleged that many people including criminals and supporters of Hirane committed illegal practices by illegally marking ballot papers at Hirane polling place. This pleading is good but the petition then goes on to allege something else about the Fourth Respondent having peculiar background knowledge of the electorate and failing to secure adequate police and defence personnel for security duties to protect the ballot boxes and papers.
37. Paragraph 21.4.2.3 is probably the closest to a good pleading and I would leave that pleading and not strike it down. Paragraph 21.4.2.5 however is speculative but I would allow paragraphs 21.4.2.5 to remain in the petition.
38. Paragraph 21.4.3, the first paragraph on page 39 of the petition is struck down as it is too general. The allegation that the presiding officer Benny Yoke participated in the illegal marking is good but no other polling officials are named. This pleading makes it hard for the other polling officials to defend themselves. On the whole I will strike out this ground.
39. Paragraph 21.4.4.1 is pleaded too generally. Paragraph 21.4.4.2 alleges presiding officer Danny Mone and his nephew Allan Mone as agents of the Fourth Respondent committing errors and omissions by participating in illegal marking of ballot papers. The pleading however does not plead that these illegal activities and omissions were committed with the knowledge and authority of the First Respondent or that it is just that the First Respondent be declared not duly elected. The Supreme Court in the Kikala v Mangape & Ors (2013) SC1295 was particular about this. This point also applies to the rest of the grounds in this category and in relation to other grounds.
40. To save me the tedious task of mentioning all the other remaining grounds I take note of the other grounds in paragraphs 21.4.5.1, 21.4.5.2, 21.4.5.3, 21.4.5.4 and 21.4.5.5 on page 42 of the petition. The same arguements arise there.
41. The same is said of the Horale polling place. The errors and omissions are not pleaded to be with the knowledge and authority of the First Respondent and that it is not pleaded that it is just that the First Respondent be not duly elected.
42. The errors and omissions allegedly committed at the Heneregi polling place also allege errors and omissions committed by electoral officials including the presiding officer. However, no where do the pleadings allege that the errors and omissions were committed with the knowledge or authority of the First Respondent. The petitioner also does not allege that it is just that the First Respondent be not declared as the member for the seat. Paragraph 2.4.8 Horerege Polling Place and the various allegations therein are dismissed.
43. In paragraph 21.4.9 Wanakapa polling place the pleadings are similar. Again the illegal practices and the errors and omissions are not alleged to have been committed with the knowledge and authority of the First Respondent and the petition does not plead that it is just that the First Respondent be not duly elected. Those allegations are therefore dismissed.
44. In paragraph 21.4.10 Wiski Polling place similar allegations are made. The same findings are in order as for paragraph 21.4.9. These grounds are also dismissed.
45. Paragraph 21.4.11 to paragraph 21.4.11.5 Wagi Polling place pleads similar allegations. Again the same conclusion is reached in relation to this ground. This ground is therefore dismissed
46. Paragraphs 21.4.11 to paragraph 21.4.11.5 Ambi Wagi Polling place pleads similar facts as in earlier paragraphs. For the same reasons those allegations are dismissed.
47. Paragraph 21.4.12 to paragraphs 21.4.12.5 Malili polling place pleads similar facts as in earlier paragraphs. Again for the same
reasons, that the errors and omissions and the illegal practices were committed without the knowledge and authority of the First
Respondent these allegations are dismissed as being incompetent.
48. Paragraph 21.4.13 to paragraph 21.4.13.5 is also dismissed for the same reasons as the others above.
49. Paragraph 21.4.14 to paragraph 21.4.14.5 Aiyakuni polling place pleads the similar allegations. These grounds are dismissed for the same reasons.
50. Paragraphs 21.4.15 to Paragraph 21.4.15.5 Diluni Polling place pleads similar allegations. These grounds are dismissed for the same reasons.
51. Paragraph 21.4.4. to paragraph 21.4.4.5 Egele polling place makes similar allegations. For the same reason these grounds are dismissed as being incompetent and for not complying; with s.208(a) and s.215(3) and s.218 of the Organic Law.
52. Paragraph 21.4.5 to paragraph 21.4.5.5 Gunu polling place alleges similar allegations but the pleadings are incomplete in that they do not state if the illegal practices were committed with the knowledge and authority of the First Respondent and that it was just that the First Respondent be not declared duly elected. For those reasons these grounds are dismissed.
53. Paragraph 21.4.5 to paragraph 21.4.5.5 Humbou 1 polling place alleges similar allegations. The allegations are incomplete as they do not say if the illegal practice and errors and omissions were committed with the knowledge and authority of the First Respondent. Moreover the dead peoples names are not stated together with the relatives. It makes it difficult for the respondents to defend this allegation. The pleadings too are confusing. For those reasons these grounds are dismissed.
54. Paragraphs 21.4.5 – 21.4.5.5 allege similar irregularities and illegalities as the previous allegations. In relation to this ground, the petitioner says that had polling been done properly the results would have been affected. The wording under s.215(3) is "that the result of the election was likely to be affected. The petition failed to plead that. Relying on the Kikala decision that ground is dismissed.
55. Paragraph 21.4.4 to 21.4.4.5 at Pabulumu polling place the allegations there are that the presiding officer committed errors and omissions by participating in the illegal marking of ballot papers. For the same reason that supporters of the First Respondent are not named and that the illegal practices and errors and omissions are committed without the knowledge and authority of the First Respondent these grounds are dismissed.
56. Paragraph 2.4.4 Kakarene 2 Polling place alleges similar allegations and for the same reasons these grounds are dismissed.
57. Similarly for grounds paragraphs 21.4.3.1 to 21.4.3.5 at Topi Polling Place, the petition fails to name the First Respondent's supporters and failed to state whether the named electors were present at the polling place to cast their votes and whether they were then denied the right to vote. Accordingly this ground is also dismissed.
58. Similarly paragraphs 21.4.2.1 to 21.4.1.5 alleges that supporters of the First Respondent and or criminals committed illegal practices by illegally marking ballot papers at Wemei, North Koroba LLG area. Again none of the supporters are named. Moreover it is confusing as to whether the 393 voter were distributed equally to both Open and Regional electorates. These grounds are dismissed.
59. Paragraphs 21.4.2.1 to 21.4.1.5 makes similar allegations. Again no names are given as to who the First Respondent's supporters are and again there is confusion as to whether the 786 voters were distributed equally between the Open and Regional electorate. Again this ground is dismissed.
60. I agree with the petitioner that the trend in Election Petitions is that the Respondents and more so the Electoral Commission and its Officers engaged in Elections will in most cases file an objection to competency of a petition. That is inevitable. That is a legitimate Court process. The way to avoid such competency applications is to ensure the petitioner pleads "facts" properly which are simple and easy to understand. Sometimes it is easier to allege a fewer facts that will bring about a desired result that invalidate an election result and which will be easy to prove rather than alleging so many things thereby confusing the pleadings.
61. I agree with the sentiments of Hinchliffe, J in Benias Piri v Nane Petrus Thomas & Ors – Unreported decision of National Court where he said:
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 stage. 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, needs 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 case 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.
62. The Supreme Court in Sauk v Polye (2004) SC769 adopted the views of Hinchliffe J but to this day the same matters my late brother alluded to remain.
63. However, it is also a legitimate argument that a petition by its nature challenges and questions the integrity of the Electoral Systems and therefore a petitioner must comply with the requirement of s.208(a) of the Organic Law.
64. The reasons this petition has ended up in the way it has in generally that the allegations are so confusing and mumbled up or jumbled up with all allegations all mixed up. Allegations are on:-
* errors and omissions by presiding officers
* errors and omissions by the Electoral Commission
* Illegal practice by the First Respondent
* illegal practice by the First Respondents supporters
* illegal practice by criminals
* illegal practice by supporters of other candidates
* denial of rights to vote
* failure to give opportunity to vote
* denial of rights of candidates to contest the elections
65. There are too many allegations all in one ground and so on. In my view all allegations should be prepared separately from another so that it is easier to follow.
66. Finally, I adopt what the Supreme Court said in Kikala v Mangape & Others where it said:-
"First, it is not clear whether 'illegal practices" or "errors or omissions" are being alleged. There is a difference between those two types of irregularities. An illegal practice is a criminal offence that is prescribed by the Organic or the Criminal Code; whereas an errors or omissions is an administrative irregularity such as a breach of statutory obligation which does not carry a criminal sanction (Mune v Agiru (1998) SC 590, Karo v Kidu [1997} PNGLR28, Manase v Polye (2008) N3341). A petition must make it clear whether an illegal practice or an error or omission is being alleged, as the test of what has to be proven in order to avoid the result of the election differs according to which ground is proved (Eoe v Maipakai 2013) N5066). S.215 of the Organic Law deals with illegal practices, while s.218 of the Organic Law deals with errors or omissions.
Secondly, to the extent that illegal practices are being alleged, it is not clear which particular practices are alleged to be illegal and in what way they are illegal: the criminal offence allegedly committed is not clear. While this is not by itself a fatal defect, the failure to specify, by reference to the law, the particular offence at the centre of each allegation, makes it difficult to appreciate the ground on which it is alleged that the result of the election should be voided.
Thirdly, despite what Mr Kennedy now clarifies, it is not clear whether it is alleged that the illegal practices were committed with or without the knowledge or authority of the second respondent. This adds to the confusion.
Fourthly, to the extent that it is alleged that the illegal practices were committed without the knowledge or authority of the Second Respondent, the allegations should have been clearly framed in terms of s.215(3) of the Organic Law, but they are not.....
As the illegal practices were alleged to be committed by "persons other than the candidate and without the candidate's knowledge or authority' and were 'other than bribery or undue influence or attempted bribery or undue influence' it was necessary to plead the two matters that must be proven, given the nature of the allegations, under s.215(3)(a) and (b) (Amet v Yama (2010) SC1064, Karani v Silupa (2003) N2385, Kubak v Trawen (2012) N4992). These two matters should have been pleaded in a clear and concise manner.
67. In this case it was not pleaded in the manner alluded to in the above quote, thus amounting to improper pleadings.
68. In the end result I dismiss all the grounds of the petition as being incompetent and accordingly dismiss the entire petition and award costs of the petition to the Respondents. Security for costs paid by the Petitioner is to be equally shared by the Respondents.
____________________________________________________________
Nandi Lawyers: Lawyer for the Petitioner
Haiara's Legal Practice: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second, Third and Fourth Respondents
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