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Embel v Komal [2015] PGNC 37; N5947 (10 April 2015)

N5947

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 99 OF 2012

In The Matter Of The Organic Law On National And Local-Level Government Elections And In The Matter Of Disputed Returns For The Nipa- Kutubu Open Electorate

BETWEEN;

PHILEMON EMBEL
Petitioner

AND

PESAB JEFFREY KOMAL
First Respondent

AND

ANDREW TRAWEN,
ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

AND

ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Third Respondent

Mendi & Waigani: Makail J
2015: 09th March & 10th April

ELECTION PETITIONS – PRACTICE & PROCEDURE – Objection to competency – Grounds of – Insufficient material facts – Illegal practices and errors or omissions at various polling locations – Errors or omissions at counting – Objection to ballot-boxes from being admitted to scrutiny – Whether sufficient material facts pleaded – Appointment of polling officials – Illegal appointment of – Whether proper ground to invalidate or void election or return – Organic Law on National and Local-level Government Elections – Section 208(a).

Cases cited

Daniel Tulapi v. Aiya James Yapa Lagea & Electoral Commission (2013) N4939
Andrew Kumbakor v. Joe Sungi & Electoral Commission: EP No. 23 of 2012 (Unreported and Unnumbered Judgment of 07th December 2012)
Pila Ninigi v. The Electoral Commission & Francis Awesa (2013) N5322
Paias Wingti v. Kala Rawali & Electoral Commission (2008) N3286
Samson Malcolm Kuli v. James Apamia & Electoral Commission (2013) N5275
Philip Kikala v. Electoral Commission & Nixon Koeka Mangape (2013) SC1295

RULING ON OBJECTION TO COMPETENCY

Counsel:

Mr. P. Mawa, for Petitioner
Mr. I. Molloy, QC, for First Respondent
Mr. K. Kepo, for Second & Third Respondents

10th April, 2015

1. MAKAIL J: This is the first respondent's objection to competency of the petition and supported by the second and third respondents. The petitioner was the runner-up to the first respondent in the 2012 General Election. At declaration on 31st July 2012, he scored 24,961 votes and the first respondent scored 26,890 votes. The difference was 1,929 votes.

Grounds of Objection

2. The grounds of objection are that the petition fails to plead sufficient facts and that facts are vague or ambiguous contrary to the prerequisites of a petition under section 208(a) of the Organic Law on National and Local-level Government Elections ("Organic law"). The ground on lack of capacity of witnesses to attest petition under section 208(d) was not pursued at the hearing, hence not considered. The Court raised a further issue as to whether the petition was filed within 40 days after the declaration of the result of the election.

Requisites of Petition

3. The grounds of objection are based on the requisites of a petition under section 208 of the Organic Law. It states:

"208. Requisites of petition.

A petition shall —

(a) set out the facts relied on to invalidate the election or return; and

(b) specify the relief to which the petitioner claims to be entitled; and

(c) be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and

(d) be attested by two witnesses whose occupations and addresses are stated; and

(e) be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election in accordance with Section 175(1)(a)."

Grounds of Petition

4. The petition is based on six grounds. They are:

4.1. Ground One.

The Returning Officer Mr. John Harisol was biased and had a vested interest in the election of the member for Nipa-Kutubu Open electorate. The allegations of fact supporting this ground are set out at paragraphs 14 to 16 and 91.

4.2. Ground Two.

Illegally appointed polling officials hijacked ballot-papers and committed errors or omissions during the pre-polling preparations. The allegations of fact supporting this ground are set out at paragraphs 18 to 26 and 91.

4.3. Ground Three.

Illegal practice at polling, that is, in all polling stations "hand-picked polling officials" hijacked polling and they marked ballot-papers in favour of the first respondent without giving the electors the opportunity to vote for the candidate of their own choice. The allegations of fact supporting this ground are set out at paragraphs 27 to 35 and 91.

4.4. Ground Four.

Errors or omissions were committed by the Returning Officer Mr. Harisol at counting. The allegations of fact supporting this ground are set out at paragraphs 36 to 57 and 91.

4.5. Ground Five.

Errors or omissions were committed by the Returning Officer Mr. Harisol prior to and during the declaration of result. The allegations of fact supporting this ground are set out at paragraphs 58 to 85 and 91.

4.6. Ground Six.

Illegal practices at polling by polling officials and Mr. Harisol. The allegations of fact supporting this ground are set out at paragraphs 86 to 90 and 92.

Grounds One, Two and Three of Petition

5. I address grounds one, two and three of the petition together because they relate to polling. The first respondent submits the allegations of fact pleaded at paragraphs 14 and 15 are insufficient because they do not state how the first respondent is related to Mr. Harisol, how Mr. Harisol's relatives are strong supporters of the first respondent and how their relationship affected the result of the election.

6. As to the allegations pleaded at paragraph 16, allegation raising the correctness of the common roll is prohibited by section 214 of the Organic Law and should be struck down. As to the allegation that Mr. Harisol appointed polling officials who are supporters of the first respondent and changed polling schedules, these are not proper grounds to invalidate or void an election or return because Mr. Harisol as the Returning Officer is authorised by the Organic Law under sections 113 and 118 to appoint and assign polling officials to polling locations and there is no prohibition against appointment of relatives as presiding officers. He is also authorised by that law to change polling locations if there is a need.

7. In any case, if the allegations are proper grounds to invalidate or void an election or return, they are vague and ambiguous because the petition does not specify the error or omission and how the error or omission affected the result of the election. In relation to the allegation that Mr. Harisol committed an error or omission when he failed to comply with the direction of the second respondent to exclude seven disputed ballot-boxes from counting, the first respondent submits that the petition fails to plead the date and time of the direction and date and time of the refusal to comply with the direction.

8. The second and third respondents support the first respondent's submissions. The petitioner counters these submissions by submitting that the allegations in these paragraphs are sufficiently pleaded and clear enough to understand the ground relied upon to invalidate or void the election or return. He submits the respondents are asking the Court to apply a very strict or rigid interpretation and application of section 208(a) (supra) and if the Court were to do that, it would result in dismissal of election petitions at the competency stage even though there may be some substance in the allegations against the respondents,.

9. He further submits the Court should tale a middle approach as was done in the case of Daniel Tulapi v. Aiya James Yapa Lagea & Electoral Commission (2013) N4939 where the learned Chief Justice took that approach when considering an objection to competency. His Honour said that "judicial scrutiny of a petition's competency under section 210 of the Organic Law is driven by fairness, purpose and substance rather than procedural style, form and legal technicalities."

10. I agree with this statement. The Court must look at the purpose and substance of the petition but these cannot be established unless the facts are sufficiently and clearly pleaded in the petition. I proceed in this premise to examine the allegations set out in the petition. With regard to the allegations at paragraphs 14 to 17 in relation Mr. Harisol being biased and had a vested interest in the election of the member for Nipa-Kutubu Open electorate, I accept the respondents' submission that this not a proper ground to invalidate or void an election or return. In my view there must be something more than that. There must be allegation that he manipulated the election process in order for the winning candidate to win the election to constitute an illegal practice or error or omission and his conduct affected the result of the election by this number of votes.

11. As to the specific allegation of deliberately inflating the elector numbers in the electoral roll from 2,300 in 2007 to nearly 6,000 in 2012, I accept the respondents' submission that it is questioning the correctness of the Common Roll and such an allegation is prohibited by section 214 (supra). This provision states "The National Court shall inquire whether or not the petition is duly signed, and so far as Rolls and voting are concerned may inquire into the identity of persons and whether their votes were improperly admitted or rejected, assuming the Roll to be correct, but the Court shall not inquire into the correctness of a Roll." In my view, this allegation does not constitute an error or omission within the meaning of section 218 of the Organic Law. It is not a proper ground to invalidate or void an election or return and is struck out.

12. With regard to the allegations at paragraphs 18 to 35 in relation to illegal appointment of polling officials and change of polling locations, I also accept the respondents' submission that these are not proper grounds to invalidate or void an election or return. As I said earlier, there must be something more than an allegation that polling officials were illegally appointed and that the Returning Officer illegally changed polling locations, such as these illegally appointed polling officials manipulated the election process in order for the winning candidate to win the election to constitute an illegal practice or error or omission and their conduct affected the result of the election. Similarly, that the illegally appointed polling officials changed the polling locations in order to deny or deprive the electors of the opportunity to vote and by their conduct the result of the election was likely to be affected or was affected.

13. The allegation in relation to the change of polling locations is the same kind of allegation alleged in Andrew Kumbakor v. Joe Sungi & Electoral Commission: EP No. 23 of 2012 (Unreported and Unnumbered Judgment of 07th December 2012). In that case, the allegation was that there was an additional polling location which the petitioner alleged was illegal because it was not in the gazetted polling schedule. The Court struck down this allegation. I find no reason to depart from that decision and adopt what Kirriwom J said in that case:

"42. Paragraph 13 talks about the scheduled polling dates commencing 23 June and ending 3 July, 2012. Consequently when polling commenced, one that took place on 28 June 2012 at Bali (Senkom) was an additional polling venue that was not in the gazetted polling schedule. Petitioner describes this as illegal polling. Is this a proper ground for challenging the result of an election? Supposing it is, the petitioner fails to explain why it is illegal polling in the light of all the powers that Polling Officials and Returning Officers have under the Organic Law to make such necessary changes or adjustments in polling to enable everyone who is eligible to vote casts his or her vote. All these provided in sections 113 to 117 of the Organic Law. If any of these laws on polling have been violated, the petition must plead how these laws have been violated, who violated them, when and how many voters were affected, were they all electors, etc? This paragraph purports to create a ground for petition as far as polling is concerned but is grossly deficient and does not meet the requirements of section 208(a) OLNLLGE.

43. The petitioner cannot unilaterally brand a polling venue illegal without laying a proper foundation for calling it illegal. Even if it is illegal, it does not automatically invalidate an election unless the Petitioner can show by sufficient number of votes that had it not been for this illegal act, the result of the election would have been different." (Underlining is mine).

14. In this case, the question is, are there allegations of facts establishing that the illegally appointed polling officials manipulated the polling to ensure that the first respondent was elected and that the change of polling locations resulted in electors being denied or deprived of voting for the candidate of their own choice?

15. The answer to these questions may be found at paragraphs 27 to 35 of the petition. The allegation is that the illegally appointed polling officials "hijacked" polling in 15 polling locations. These polling locations are listed in table form at paragraph 30. These polling locations are:

Nipa Local-level Government Area

Injip No. 1,

Injip No. 2,

Ebil No. 1,

Ebil No. 2,

Hepinja, and

Hont

Poroma Local-level Government Area

Del No. 1,

Del No. 2,

Volumesa,

Pambal, and

Poroma No. 1.

Nembi Plateu Local-level Government Area

Iomol No. 1,

Iomol No. 2,

Embi No. 1, and

Upa No. 1.

16. Except for Iomo No. 1 in the Nembi Plateu and Pombrel No. 2, there are no facts to show how the illegally appointed polling officials "hijacked" polling in the rest of the polling locations. In my view the word "hijacked" or "hijack" or "hijacking" is vague and ambiguous if it is intended to describe the type of illegal activity in the election process, in this case, at polling. Facts as to what and when the polling official in each of the polling location did are missing. What and when did each of the polling officials do to constitute hijacking of the polling? As to what and when exactly the polling officials did are material facts and must be pleaded to put the other side on notice of what kind of allegation they are expected to meet at trial. Since these grounds alleged illegal practices and errors or omissions, is it the polling officials' failure to ensure that electors cast their votes for the candidate of their own choice or is it stuffing of ballot-boxes with marked ballot-papers in favour of the first respondent without giving the electors an opportunity to cast their votes or is it destruction of ballot-boxes or is it refusal to sign ballot-papers marked in favour of the petitioner or other candidates? It is also preferable to name or identify the polling official(s) involved in the alleged hijacking. The petition does not state these facts. The only two cases where some facts are pleaded are Iomo No. 1 and Pombrel No. 2 polling locations.

17. At Iomo No. 1, the allegation is that an illegally appointed presiding officer by the name of Pius Sikap refused to sign ballot-papers despite the electors wish to vote for the petitioner and other candidates but the date of the alleged hijack of polling is not pleaded. One of the electors was Ronald Wela. At Pombrel No. 2, the presiding officer John Alop went further by raising his hands in the air and declaring publicly that his hands would never sign a ballot-paper for the petitioner. Again, the date of the alleged hijack is not pleaded. Apart from these two polling locations, I am satisfied material facts are missing or lacking in relation to the other polling locations. I am also satisfied that the allegations pleaded at paragraphs 27 to 31 are vague and too general. They fail to meet the requirement to plead facts under section 208(a) (supra) and I strike them out.

18. But that is not all. For Iomo No. 1 and Pombrel No. 2, are there facts pleaded to establish how the polling official's refusal affected the result of the election? To answer this question, one has to look at the number of votes not signed by the polling officials and for this polling place, one has to go to the table at paragraph 42 to find the number of votes affected. It is 1,468. This polling location is one of those listed at paragraph 30 of the petition as being hijacked by polling officials. As for Pombrel No. 2, I find none (although paragraph 70 pleads a figure of 1,089 votes which I will explain later). The number of votes affected at Iomo No. 1 is 1,468 and the difference between the votes received by the first respondent and the petitioner is 1,929. This is one of the allegations left but even if it were allowed to go to trial, it will not affect or change the result of the election. It is, therefore, of no consequence. The allegation of hijacking of polling at Iomo No. 1 at paragraphs 32, 33 and 35 are struck out.

19. Returning to the hijacking allegation at Pombrel No. 2, the pleading is contradictory. The names of the hijacked polling locations are listed at paragraph 30 of the petition. They are restated at paragraph 15 of this ruling. Pombrel No. 2 is not one of them. In my view, the petitioner is bound by what he has pleaded in this paragraph and cannot change it. Any suggestion that paragraph 26 which pleads "many other polling places" covers this polling location must be rejected because it is vague and too general. The end result is the petitioner is left with conflicting allegations as to whether this polling location was also hijacked by polling officials. The petitioner cannot have it either way. This allegation at paragraphs 34 and 35 is confusing and is accordingly, struck out.

Ground Four of Petition

20. The allegation in relation to errors or omissions committed by Mr. Harisol at counting is a follow on from the allegations of illegal polling officials hijacking polling in the stated polling locations. The petition pleads that, "the Petitioner and other candidates petitioned the Electoral Commissioner to declare the election in Nipa Kutubu failed on the ground that there was widespread hijacking and illegal polling as part of an election rigging scam in the Southern Highlands Province and particularly in Nipa Kutubu." "............. Appropriate statements were prepared and submitted to the Electoral Commissioner's Office by way of petitions and objections to the ballot boxes from being admitted for count (sic)." see paragraphs 36 and 37.

21. The Electoral Commissioner responded to the candidate's petitions and directed Mr. Harisol to reject 7 out of 25 ballot-boxes from counting. Mr. Harisol refused to comply with the direction and counted the 7 ballot-boxes. The total number of votes counted from the 7 ballot-boxes is 10,379. The alleged error or omission is that Mr. Harisol failed to comply with the second respondent's direction to exclude the 10,379 votes from the 7 ballot-boxes from counting. According to paragraph 42, the disputed ballot-boxes are from the following locations:

Injip No. 1 – 2,626 votes,

Injip No. 2 – 1,591 votes,

Merep No. 1 – 1,569 votes,

Iomo No. 1 - 1,468 votes,

Iomo No. 2 – 1,089 votes,

Upa No. 1 – 808 votes, and

Embi No. 1 – 1,229 votes.

22. The first respondent submits if the petitioner is alleging that the 7 ballot-boxes were hijacked by illegally appointed polling officials and should be excluded from counting based on the direction of the second respondent, there are no allegations of fact establishing that the procedure under section 153A of the Organic Law was breached. He submits the petition must state that the objections were made to the Returning Officer, the ground(s) of objection, the decision of the Returning Officer and the reason(s) for not excluding the 7 ballot-boxes from counting. This is because the Returning Officer is charged with the duty to count votes and if it is alleged that he or she failed to discharge that duty, it is necessary to plead the material facts in support of the allegation. On the other hand, the petitioner submits the petition sets out clearly the allegation and the allegation is that the Returning Officer failed to comply with the direction of the second respondent to exclude the 7 ballot-boxes from counting and committed an error when he counted them. If he complied, the total tally of votes would have been reduced by 10,379 votes and this would have changed the final result of the election.

23. These competing submissions bring into consideration the application of section 153A (supra) and what sort of facts must be pleaded in the petition to constitute an error or omission under this provision. Section 153A states:

"153A. excluding ballot-box from scrutiny.

(1) Subject to this section, a Returning Officer may refuse to admit to scrutiny a ballot-box containing marked ballot-papers where he is of the opinion that: —

(a) the ballot-papers in it were not lawfully casted; or

(b) the ballot-box was tampered with and the integrity of the ballot-papers in it were compromised.

(2) Where objection is taken to a ballot-box being admitted to scrutiny by a scrutineer or by a polling officer who polled with the ballot-box, the Returning Officer may require the objection and the grounds of the objection to be reduced into writing and may require any responses from a scrutineer to be in writing and for the relevant Presiding Officer and other polling officers as are available at the scrutiny to comment on the objections and the responses given before making a decision on such objection.

(3) A ballot-box that is damaged but its contents have not been disturbed is not to be rejected for the reason of the damage.

(4) A decision of a Returning Officer under this section may not be challenged other than by way of petition."

24. I accept the first respondent's submission. Pleading the material facts in support of an allegation of an error or omission under section 153A (supra) is necessary. A clear statement on pleading of material facts supporting the allegation of error or omission under section 153A (supra) may be found in the judgment of the learned Chief Justice in Pila Ninigi v. The Electoral Commission & Francis Awesa (2013) N5322 where his Honour stated:

"32. OLNE, 153A and OLNE Regulations, s 90 set out, in mandatory terms, an elaborate and almost exhaustive formal process to be followed before a RO makes his decision: Kopaol v Embel (2008) N3319. When a scrutineer or polling officer objects to a ballot box being admitted for scrutiny, the RO is duty-bound to document the objection and grounds for objection, record the decision-making process that involve giving the scrutineers and polling officials affected by the objection an opportunity to comment or give an explanation on the grounds of the objection; and, not only the decision but also the reasons for decision: EP 55 of 2007, Wingti v Olga, per Cannings J (March 2008).

33. If those procedural requirements are not followed by a RO, it constitutes a breach of statutory duty that clearly comes under errors or omissions within the terms of OLNE, s 218. A breach of s153A and Regulations, s 90 constitutes an error or omission which in turn constitutes a ground upon which an election or return may be voided, a situation that comes within the terms of s 208 (a). Section 208 (a) read in conjunction with s 153A and Regulations, s 90 requires a petition to plead the requirements of essential and material facts alongside the requirements of s 153A and Regulations. Mr Kennedy's argument that such breaches fall outside of the scope of s 218 is without merit. Mr Kennedy's argument that such breaches fall outside of the scope of s 218 is without merit.

34. The pleadings should contain a concise statement of the procedural requirements of s 153A, and s90 of the Regulations and how the procedure was applied and reasons why the petitioner is aggrieved by the decision. Whilst it is true that s 208 (a) requires facts to be pleaded to support a ground for voiding an election or return, that ground derives its source from the provisions of the Organic Law or the Constitution; and, it would be a critical omission under s208 (a) for a petition if it fails to make reference to the applicable provisions that establish that ground and relate the facts to it. There must be a connection or correlation between the facts and the legal ground relied upon to void the election, by way of pleading, to meet the mandatory requirements of s 208 (a): Holloway -v- Ivarato[1988] PNGLR 99; Mune v Agiru (1998) SC590.

35. In order for this Court to review the RO's decision to reject or admit a Ballot box from the scrutiny, the Petitioner must, in the Petition, plead the matters set out in s 153A (1),(2) & (3); coupled with a clear and concise statement as to what is wrong with the RO's decision. Those are relevant and material facts required to be pleaded in a Petition by OLNE, s 208 (a) read in conjunction with s 153A. The conduct of polling and conduct of scrutiny of votes are two distinct and separate processes and activities that takes place at different times, different places and with different electoral officials assigned to those tasks. Polling officials are not counting officials and they are not required and do not get to participate at the counting except when they are required to attend at the counting to clear their respective ballot boxes under their control and in the event of a disputed box, to supply to the RO his report or comments as required under s 153A and Regulation, s 90 (6). It is wrong and a grave mistake for a petitioner or for anyone to assume, or for this Court to be expected to assume that counting officials are or ought to be aware of what transpired at the polling place and events leading up to the time the ballot box is produced for scrutiny at the counting center, by not pleading the essential and material facts concerning those matters."

25. From my perusal of the allegations set out in paragraphs 36 to 57 of the petition, I am unable to find any allegation that objections were made to the Returning Officer, the ground(s) of objection, the decision of the Returning Officer and the reason(s) for not excluding the 7 ballot-boxes from counting. Based on this reason alone, the allegations set out at paragraphs 36 to 57 should be struck out.

26. But there is a further reason, one that is more substantive but I do not think should be overlooked because it raises the issue whether the allegation as pleaded constitutes an error or omissions in order for it to be a proper ground to invalidate or void an election or return. It requires a consideration of section 153A (supra) in the light of the allegations of fact pleaded in the petition. Section 153A gives power to the Returning Officer to exclude ballot-box from counting. For this reason, Mr. Harisol is the authorised person to make that decision. However, the petitioner submits that the exercise of this power is subject to the directions of the Electoral Commissioner under section 19(1) which states:

"(1) The Electoral Commission shall, by notice in the National Gazette, appoint a Returning Officer for each electorate, who shall be charged with the duty of giving effect to this Law within or for his electorate, subject to any directions of the Electoral Commission."

27. That may well be the case but there are no allegations of fact pleaded to show that the petitioner and other candidates objected to the 7 ballot-boxes and the objection was brought to attention of Mr. Harisol, he considered it and refused it. The allegations of fact pleaded at paragraphs 36 and 37 (supra) are that the petitioner and other candidates petitioned the Electoral Commissioner to declare failed election because of "widespread hijacking and illegal polling as part of an election rigging scam in the Southern Highlands Province and particularly in Nipa Kutubu." "............. Appropriate statements were prepared and submitted to the Electoral Commissioner's Office by way of petitions and objections to the ballot boxes from being admitted for count (sic)." (Underlining is mine).

28. It should be emphasised here that the petitioner and other candidates petitioned the Electoral Commissioner and not Mr. Harisol with respect to their complaint about the hijacking of polling by illegal polling officials. This included objecting to the ballot-boxes from being admitted to scrutiny (counting). Put simply, the petitioner and other candidates by-passed Mr. Harisol. They went directly to the second respondent contrary to the well established procedure for objection under section 153A (supra). This may explain why Mr. Harisol refused to comply with the direction of the second respondent, and this is the critical part of the petition. I say this because the rest of the allegations are connected to the allegation that Mr. Harisol failed to comply with the direction of the Electoral Commissioner to exclude the 7 ballot-boxes from counting.

29. The gist of the allegation is that Mr. Harisol failed to comply with the direction of the second respondent to exclude the 7 ballot-boxes from counting. Mr. Harisol as the Returning Officer is charged with the duty to exclude a ballot-box from scrutiny (counting) if there is an objection and he upholds it. Section 153A (supra) does not say that candidates who are aggrieved by the way the election is conducted, particularly the conduct of the Returning Officer must petition the Electoral Commissioner, nor is there a provision in the Organic Law that allows candidates to petition the Electoral Commissioner. Why? The conduct of the election must not be unnecessarily interfered with or interrupted. It must be allowed to be completed without delay. The only time it may be interrupted is at scrutiny of votes where aggrieved candidates and their scrutineers may object to the admission of ballot-box to scrutiny under section 153A (supra) and according to sub-section (4), a decision of the Returning Officer may not be challenged other than by way of petition. But as I observed earlier, there is no mention of any objection been drawn to Mr. Harisol's notice. The consequence of this omission is that, he was not given an opportunity to independently address his mind to it and make a decision.

30. The proper procedure as outlined in section 153A (supra) and as held by the Court in Paias Wingti v. Kala Rawali & Electoral Commission (2008) N3286, amongst others is if a scrutineer, candidate or polling officer objects to a ballot-box being admitted to scrutiny, the Returning Officer must address his or her mind to the objection and make an independent decision, subject only to direction by the Electoral Commission, to admit or refuse to admit the ballot-box to scrutiny. Secondly, the Returning Officer must document the objection, record the decision making process and clearly state what opinion has been formed for the purposes of s. 153A and the reasons for forming that opinion.

31. In Samson Malcolm Kuli v. James Apamia & Electoral Commission (2013) N5275, the scrutineers of candidates including the petitioner's scrutineers objected to a ballot-box from being admitted to scrutiny. The petitioner said that the ballot-box was tampered with because of sorcery and bribery and the respondents said it was because of the inner seal number of the box being not correctly verified by the petitioner's scrutineer. The Returning Officer received the objection in writing and consulted the Electoral Commissioner. The Electoral Commissioner directed that the ballot-box be admitted to scrutiny because amongst other reasons, said that the absence or inability of the scrutineer to verify the number of the inner seal was not a sufficient reason to exclude the box from scrutiny.

32. It should be noted here that in that case, the Returning Officer consulted the Electoral Commissioner and the latter directed him to exclude the ballot-box from counting. The need to consult the Electoral Commissioner is necessary to prevent conflicting decisions. To put it in very plain terms, the last thing that the electors want to see is two different decisions concerning the same dispute. I do not think that the Organic Law envisages such a situation. The point is, the consultation between the Returning Officer and the Electoral Commissioner must result in one outcome. Otherwise, there will be chaos. In this case, there is no mention of Mr. Harisol consulting the second respondent or vice versa before allowing the 7 ballot-boxes to be counted. This is understatement because as I said earlier and repeat here, based on what has been pleaded, Mr. Harisol was not given that opportunity. I am not sure if the failure to bring the objection to Mr. Harisol's notice was a result of a lack of understanding and appreciation of the procedure for objection to ballot-boxes to scrutiny by the petitioner and other candidates or a deliberate ploy to circumvent the lawful process for their own benefit. Be that as it may, I am satisfied the error or omission as alleged by the petitioner does not constitute an error or omission within the meaning of section 218 (supra) and is not a proper ground to invalidate or void the election or return of the first respondent. It is misconceived and is struck out.

33. It follows the rest of the allegations pleaded at paragraphs 53 to 57 in relation to the revocation of Mr. Harisol as Returning Officer, failure by the Assistant Commissioner of Police Jim Andrews to arrest and charge Mr. Harisol, subsequent appointment of an Acting Returning Officer, the Acting Returning Officer's defiance to exclude the 7 ballot-boxes from counting and failure by the Electoral Commissioner to fail the election in the electorate under dispute are irrelevant and of no consequence. They are struck out as being misconceived.

Ground Five of Petition

34. The allegations are errors or omissions committed by the Returning Officer prior to and during the declaration of result. Amongst other grounds, the first respondent and supported by the second and third respondents submit the allegations in relation to the public declaration of result in the media on 31st July 2012 is misconceived. It is not a proper ground because the Electoral Commissioner is authorised by law (Organic Law) to also declare the winner of the election. Similarly, the allegations that the Electoral Commissioner gave conflicting election results and conflicting decisions when he disallowed 10,379 votes from the final total tally and then disallowed 5,632 votes from the 7 ballot-boxes are not proper grounds and should be struck out. To that extend, I accept the respondents' submissions. But a more fundamental reason is that, these allegations also suffer from the same defect as found in the other allegations. I find these allegations pleaded at paragraphs 58 to 85 irrelevant and of no consequence. Indeed, I find they are a result of the failure by the petitioner and other candidates to comply with the procedure for objection under section 153A (supra). For these reasons, they are struck out as being misconceived.

Ground Six of Petition

35. The allegations are illegal practices committed by polling officials and Mr. Harisol at polling. Even applying the purposive and substance approach rule as submitted by the petitioner, I am of the view that the allegations also suffer from the same defect as those found in the allegations of errors or omissions. I find the allegations at paragraphs 85 to 90 lack material facts as to what illegal act was committed at each of the 7 polling locations. When was the illegal act committed and who committed it. In my view the allegations are vague and too general and this makes it very difficult for the respondents to know the kind of allegations they are expected to meet at trial. I refer to Philip Kikala v. Electoral Commission & Nixon Koeka Mangape (2013) SC1295. The allegations of illegal practices in the stated paragraphs are accordingly struck out.

Conclusion

36. In the end, as all the grounds of the petition are struck out, there is nothing left for the petition to proceed further. It is also not necessary to consider the ground on whether the petition was filed within time. The Court's decision is the objection to competency is upheld, the petition is dismissed as being incompetent. The petitioner shall pay the costs of the proceeding, to be taxed, if not agreed. The security deposit of K5, 000.00 held by the Registrar of the National Court shall be paid to the respondents in equal portions.

Order

37. The orders of the Court are:

1. the objection to competency is upheld.
   
2. the petition is dismissed as being incompetent.
   

3. the petitioner shall pay the costs of the proceedings, to be taxed if not agreed.

4. the security deposit of K5, 000.00 held by the Registrar of the National Court shall be paid to the respondents in equal portions.

______________________________________________________________
Mawa Lawyers: Lawyers for the Petitioner
Adam Ninkama Lawyers: Lawyers for the First Respondent
Niugini Legal Practice: Lawyers for the Second & Third Respondents