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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO. 22 OF 2017
IN THE MATTER OF A DISPUTED RETURN FOR THE BOGIA OPEN ELECTORATE IN THE NATIONAL GENERAL ELECTIONS
BETWEEN:
DARIUS KOMBE
Petitioner
AND:
ROBERT NAGURI
First Respondent
AND:
THE ELECTORAL COMMISSION
Second Respondent
Madang: Yagi J
2017: 13th & 15th November
ELECTION PETITION – PRACTICE & PROCEDURE – objection to competency of petition – pleading facts – principles of law – grounds of petition – errors and omissions – allegation of failure by the Returning Officer to perform his statutory function and duty during the scrutiny process under the Organic Law, s. 153A - whether material or relevant facts are pleaded in the petition.
Cases Cited:
Francis Koimanrea v. Alois Sumunda (2003) N2421
Holloway v. Ivarato [1988] PNGLR 99
Mathias Karani v. Yawa Silupa (2003) N2385
Michael Sapau v Parkop Posangat (2013) SC1256
Mond v. Okoro & Electoral Commission [1992] PNGLR 501
Pila Niningi v. Electoral Commission & Francis Awesa (2013) N5322
Philemon Embel v. Pesab Jeffrey Komal (2015) N5947
Paias Wingti v. Kala Rawali & Others (2008) N3286
Raymond Agonia v. Albert Karo [1992] PNGLR 463
Sir Arnold Amet v. Peter Charles Yama (2010) SC1064
Sai-Sail Beseoh v. Yuntivi Bao (2003) N2348
Soro Marepo Eoe v. Mark Ivi Maipakai & Others (2013) N5066
Siaguru v. Unagi & Electoral Commission [1987] PNGLR 372
Thompson v. Pokasui & Electoral Commission [1988] PNGLR 210
Legislatios:
Election Petition Rule 2017
Organic Law on National and Local Level Government Elections
Counsel:
J. Alman, for the Petitioner
T. M. Ilaisa, for the First Respondent
L. Okil with L. Kot, for the Second Respondent
RULING ON OBJECTION TO COMPETENCY
15th November, 2017
1. YAGI J: This is a ruling on the objection to competency of an election petition arising from the recent National General Election.
2. A petition was filed in this proceeding on 30 August 2017 in which the petitioner challenged the declaration of the first respondent as the duly elected member for Bogia Open Electorate in the Madang Province following the 2017 National Parliamentary General Elections. The petition was duly served on the respondents. The service of the petition were made on the first and second respondents by way of publication in accordance with Rule 8(2)(b) of the Election Petition Rules 2017. The publication was made on 05 September 2017.
3. On 08th November 2017 the second respondent filed and served an objection to competency of the petition. Although the prescribed period of 14 days as required under the Election Petition Rules 2017 had lapsed, the filing of the objection was made pursuant to leave granted by the Court on 06 November 2017. No objection was filed by the first respondent, however, at the hearing the first respondent supported the objection made by the second respondent.
4. The petition contains three grounds alleging errors and omissions under s.218 of the Organic Law on National and Local Level Government Elections. For the present purposes I will refer to this law as the Organic Law. The grounds are stated in Part C of the petition and are as follows:
“1. That the Petitioner and other candidates on numerous occasions upon sensing counting discrepancies requested the Returning Officer for re-checking or re-counting of votes but were ignored.
5. The petitioner relies on these three grounds to seek a number of reliefs, amongst others, principally to have the Court order a re-count of all the ballot papers for the Bogia Open Electorate. It should be noted that none of the grounds in the petition impinge on the conduct of the first respondent. All three grounds are directed at the conduct of the second respondent, through the Returning Officer, during the counting and scrutiny processes in respect to the relevant ballot papers for the Bogia Open Electorate.
6. The Court heard the submissions and arguments on the competency of the petition on 13 November 2017 and reserved to today for a ruling.
7. The objections are based on the requirement of s.208(a) of the Organic Law. The respondents say that the petitioner failed to plead the material facts in the petition.
8. The second respondent submits that the petition is incompetent in two respects:
1. The facts in the petition do not clearly demonstrate any ground and are otherwise inappropriate or speculative.
2. The facts are misleading, speculative and inconclusive and fail to establish any ground.
9. However, after reading the written submissions of the second respondent it is apparent that the objection is really about the alleged failure to demonstrate a clear ground in the petition.
10. Counsel for the second respondent submits the grounds pleaded fall short of constituting a proper ground, the facts are not being sufficiently crystallised to demonstrate the nature of the error or omission and where the alleged error or omission allege a breach of statutory duty the relevant electoral law should be sufficiently identified by the pleading. In that regard counsel submits the facts alleges a breach of duty under ss. 126 and 153 of the Organic Law.
11. It is submitted the intent of ss. 126 and 153 of the Organic Law is to ensure proper authentication of the ballot papers by electoral officials. There are a number of ways that a ballot paper can be authenticated and “initial or signed” are just two of the methods. Therefore simply stating as a fact that a failure to “initial or sign” a ballot paper does not constitute an error. It is insufficient pleading in terms of the facts. It must be pleaded as a fact that ballot papers are not “authenticated”.
12. The general underlying submission is that the facts pleaded do not disclose any grounds and otherwise the grounds are unsubstantiated in the facts on the basis that there is failure to plead the correct winning margin and the difference in the votes between the petitioner and the winning candidate to demonstrate that the difference is likely to or did affect the result of the election.
13. Counsel for the petitioner submits the style and form of pleading is based on the prescribed form provided by the new Election Petition Rules 2017. The relevant form is Form 1 where there are four parts to the petition; A, B, C and D. Relevantly, Part B relates to pleading of facts followed by Part C in terms of pleading of the grounds and Part D is the prayer for relief. Therefore the petition should be construed in that manner as prescribed. Hence it is submitted by counsel that the facts constituting the grounds are sufficiently pleaded in Part B of the petition.
Law on Objection to Competency of Petition.
14. I now turn to consider the applicable law.
15. The law is settled. It is the question of how the Court is to apply the legal principles to the facts of the case.
16. The Organic Law states that a petition challenging the result of an election must plead the facts relied upon to invalidate the election. If the facts are not pleaded the petition will be deemed incompetent. This is the requirement of s. 208(a) of the Organic Law. The other requirements include s. 209 of the Organic Law. These are mandatory prerequisites to a valid and competent petition. Section 209 directs that a deposit as security for costs must be made at the time of the filing of the petition. Section 208 of the Organic Law 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).” (Emphasis added)
17. The Courts have held that for the purposes s. 208(a) of the Organic Law, the petition must set out the facts supporting the ground. Simply pleading the ground without the supporting facts or conversely pleading the facts without the ground is insufficient and will render the petition invalid or incompetent. The Supreme Court made this point very clearly in Holloway v. Ivarato [1988] PNGLR 99. The Supreme Court stated:
“The requirement of s. 208(a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return maybe declared invalid. Setting out grounds without more does not satisfy the requirement of s. 208(a) of the Organic Law.”
18. The Supreme Court in the Holloway case (supra) also went further to construe and give meaning to the term “facts”. The Court said facts must be “material or relevant”. It stated:
“The facts which must be set out under s. 208(a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated.”
19. There are numerous other cases that essentially restate and applied the law in different contexts, facts and circumstances. I do not consider it necessary to cite or refer to all these cases in my ruling. It will suffice, in my view; that a reference is made to a few of these cases. see Siaguru v. Unagi & Electoral Commission [1987] PNGLR 372; Thompson v. Pokasui & Electoral Commission [1988] PNGLR 210; Mond v. Okoro & Electoral Commission [1992] PNGLR 501; and Raymond Agonia v. Albert Karo [1992] PNGLR 463.
20. It is also important to appreciate the underlying object and purpose of pleading facts in a petition. The Courts have emphasised that the purpose is for the petitioner to clearly state his or her case in a summary way so that the respondents and the Court are able to fully comprehend the facts and the issues to meet at trial. The facts must be sufficiently clear leaving no room for speculation, conjecture or ambiguity. In the Supreme Court case of Sir Arnold Amet v. Peter Charles Yama (2010) SC1064 Justice Davani made the following statement of the principle:
“The significance of applicants complying with the requirements of s. 208 are clear. It is not for a court to draw conclusions on what are clearly omissions be they typos or incorrect using of statutes, etc. They all go towards satisfying the requirements in s. 208. It is the applicant and his counsel who must ensure that the petition is entirely correct, before it is filed.”
21. In Siaguru v. Unaggi [1987] PNGLR 373 (1987) N641 the Court in considering the issue held that:
“What are sufficient facts depends on the facts alleged and the grounds these facts seek to establish. Anything short of that would defeat the whole purpose of pleading, that is, to clearly indicate the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved.”
22. As the grounds relied upon in the present petition are founded on s. 218 of the Organic Law it is necessary that I also consider the specific principles. Section 218 of the Organic Law provides:
“218. Immaterial errors not to vitiate election.
(1) Subject to Subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.
(2) Where an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election.”
23. The case law authorities indicate that the pleading must not only plead the facts constituting the ground but also show how the alleged errors and omissions did or is likely to affect the result of the election or return. In Sai-Sailon Beseoh v Yuntivi Bao (2003) N2348 the Court considered the requirement of s. 218 of the Organic Law and said it is not only sufficient to plead the errors and omissions but the pleading must go further to show how the alleged errors and omissions did affect the result of the election. The Court said:
“Section 218(1) has two parts. First, the delay, error or omission of electoral officers must be clearly pleaded and second, the petition must demonstrate clearly how that delay, error or omission did affect the result of the election. Mere pleading of the delay in the polling and errors and omissions will not suffice. Likewise mere pleading that the result was affected will not suffice.”
24. Similar statements of the principle were made by the Court in Francis Koimanrea v. Alois Sumunda (2003) N2421 and Mathias Karani v. Yawa Silupa (2003) N2385. In the Karani case (supra) the Court said:
“Where a petition is founded on alleged errors and omissions of electoral officials the pleading must set out the relevant material facts. Allegations in petitions founded on errors and omissions must provide the following:
(a) the error or omission complained of;
(b) the error or omission was committed or made by the electoral officer; and
(c) the error or omission “did affect the result of the election”
Reasons for Decision
25. The current law on pleading of facts in an election petition is settled, in that, the material facts must sufficiently be pleaded in a petition that will give rise to a valid ground for which a petition may proceed to trial.
26. The grounds to which a Court of Disputed Return may invoke its powers in granting the reliefs provided under s. 212 of the Organic Law are provided under the Organic Law itself or by other laws. The common examples of these are bribery or undue influence (s. 215), errors or omissions (s. 218). Other grounds may include the Constitution, for example, disqualification of a Member of Parliament under s. 103. This provision, in my view, covers or includes instances where a new Member of Parliament is elected into the National Parliament following a National General Election.
27. In this case the three grounds stated under Part C of the petition do not state the specific ground that the petition relies upon. That is, it does not specifically state that the facts as pleaded in Part B of the petition gives rise to errors and/or omissions committed by the Returning Officer for Bogia Open Electorate. However, I do not think that there is confusion or ambiguity in terms of the overall factual allegations in the petition. The pleading in the petition should be looked as a whole and not on a piece meal basis. In other words there should be no nit picking. This is the practical common sense approach: see Michael Sapau v. Parkop Posangat (2013) SC1256. The complaint in the petition is very simple and straight forward. It is that the Returning Officer committed an error or omission in the performance of his statutory function or duty that is likely to affect the outcome of the election. This is the gist of the petition.
28. I do not think that there can be any valid argument that the lack of specific pleading of the ground creates confusion, ambiguity or uncertainty to the extent that the respondents are unable to properly prepare to meet the issues at trial. In my view, any suggestion that this may tantamount to a trial by ambush cannot be sustained.
29. However, the fundamental point of contention in the objection is about the deficiency in pleading the relevant material facts.
30. As regards the need for pleading the elements of the law, in this case, ss. 126 and 153 of the Organic Law it has been held that where it is alleged that there is a breach of statutory function or duty the petitioner must state in the pleading of facts a concise statement of the procedural requirements of the law and how the law (be it substantive or procedural) and the manner in which the breach was committed.
31. There are two cases very similar to the present, and, in my view, are cases on point. They are Pila Niningi v. Electoral Commission & Francis Awesa (2013) N5322 and Philemon Embel v. Pesab Jeffrey Komal (2015) N5947.
32. In the Pila Niningi case (supra), one of the allegations related to error or omission against the Electoral Commission where it was alleged that the Returning Officer failed to comply with the requirements of s. 153A of the Organic Law in terms of hearing the objections made by scrutineers of candidates as to whether to allow or disallow ballot boxes from counting. The Court in that case (per Injia CJ) on hearing objection to competency arguments relating to the facts pleading the allegation made the following pertinent statements, at paragraphs 32 – 35 of the judgment, as to the need for precise pleading:
“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.
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.” (Emphasis added)
33. The Court in Philemon Embel case (per Makail J) adopted the same view expressed by the Chief Justice and said:
“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 ..........”
34. So the obvious question to ask here is; has the petition complied with the requirements of pleading the facts consistent with the decisions of the Court in these two cases?
35. I have perused the pleading of facts contained in Part B of the petition. It is 6½ pages long. It consists mostly of a general narration of events supported by a summary of figures at various critical stages of the primary counts. It is therefore clear that the essence of the complaint relates to the refusal by the Returning Officer to properly deal with the objections/complaints made by various scrutineers and candidates before allowing the counting of the ballot papers in 2 ballot boxes for Polling Team 17 for the Yawar LLG ward during primary count number 32. This type of complaint goes to the heart of the scrutiny process in an election and falls directly under s. 153A of the Organic Law. This provision 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 President 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.”
36. Under this provision (s. 153A), there are a number of procedures or steps that a Returning Officer is required to observe or follow in properly dealing with a complaint during the scrutiny process. These steps have been elaborated upon by the Court in a number of cases beginning with Paias Wingti v. Kala Rawali & Others (2008) N3286 and followed more recently by Pila Niningi (supra) and Soro Marepo Eoe v. Mark Ivi Maipakai & Others (2013) N5066. According to these cases there is a need for specific pleading in respect to allegations based on s.153A of the Organic Law. This has been clearly explained by Chief Justice Injia in the Pila Niningi case (supra) which I have referred to earlier.
37. The pleading must state concisely all such facts as to –
38. In this case, I find that the pleading in terms of the requirement in s. 153A appears to be deficient. The facts pleaded are too broad and general and are not specific, concise and consistent with the law in s. 153A. In the end I conclude that the facts do not satisfy the requirement of s. 208(a) of the Organic Law. The consequence is that the petition is incompetent and accordingly must be dismissed.
39. The following will therefore be the orders of the Court -
__________________________________________________________________
John Alman Lawyers : Lawyers for the Petitioner
Thomas More Ilaisa Lawyers : Lawyer for the First Respondent
Kimbu & Associates Lawyers : Lawyers for the Second Respondent
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URL: http://www.paclii.org/pg/cases/PGNC/2017/384.html