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Hamiya v Undialu [2018] PGNC 37; N7107 (27 January 2018)

N7107

PAPA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

EP No. 38 of 2017

In the Matter of the Organic Law on National and Local-Level Government Elections and In the Matter of Disputed Returns for the Hela Provincial Seat

BETWEEN
DR. HEWALI HAMIYA
Petitioner

And
PHILIP UNDIALU
First Respondent

And
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent

Waigani: Batari, J.
2018: 12 & 27 January

ELECTION PETITION – Objection to competency of - Petition alleging errors or omissions and illegal practices - Grounds of - Facts pleaded in support of – Allegations of excess ballot papers occasioned by lack of security over ballot boxes – Factual pleadings - Whether in compliance with s208 (a) Organic Law on National & Local-Level Government Elections – Whether sufficient compliance of requirement to plead material facts in support of grounds to invalidate election result or return.

PRACTICE & PROCEEDURE –– Objection to competency - Petition alleging errors or omissions and illegal practices – Lumping of grounds errors or omissions and illegal practices together – Whether permissible - Illegal practices – Petition must further plead election result is likely to be affected and that it is just that the winning candidate be declared not duly elected – Section 215(3)(c), Organic Law on National and Local Level Government Elections.

Facts

The Petitioner brought an election petition citing that polling officials hijacked ballot boxes and filled them with ballot papers outside gazetted polling stations, the number of ballot papers from some polling stations exceeded the number on the electoral roll, and that ballot boxes were left unattended for long periods of time. None of the grounds challenged the counting. The applicants submitted that the grounds did not contain sufficient relevant facts as required by s 208(a) of the Organic Law.

Held

1. An allegation standing alone or read together with other statements of facts must be set out in clear and concise form to support or establish each charge of errors or omissions by electoral officials or illegal practices, at [14];
2. The facts alleged in paragraph 6 and any other sets of factual pleadings of errors or omission by electoral officials and illegal practices at scrutiny are struck out because the grounds of the petition do not challenge irregularities at counting or scrutiny of the votes, at [22-23,39 & 45-46];
3. Illegal practices are provided for in s 215 of the Organic Law whereas errors and omissions are provided for in s 218, different principles apply and for clarity the two grounds should be pleaded separately, at [30-31];
4. The factual pleading of excess ballot papers has met the requirements of s208(a) and should proceed to trial, at [49];
5. The factual pleadings of illegal practices omitted the essential elements of s215(3) in failing to plead that the result of the election is likely to be affected and that it would be just that the winning candidate be declared not to be duly elected, at [52];
6. The part of ground 1 alleging illegal practices is insufficiently pleaded and is dismissed, the part alleging errors and omissions will proceed to trial, at [54];
7. While the factual allegations concerning the lack of polling security is constituted by a series of related factual pleadings scattered throughout the petition they are sufficient to support the ground that ballot papers were either lost or compromised by being stuffed with illegally caste ballot papers and that ground is sufficiently pleaded, at [67-69];
8. In relation to allegations of illegal practices committed without the knowledge of the successful candidate the petitioner must plead whether the relevant conduct is likely to affect the result and whether it would be just to declare the winning candidate not duly elected to comply with s 215(3), at [84-85];
9. The allegations of illegal practices pleaded in paragraphs 69 to 75 of the Petition, considered individually or collectively, are deficient in material facts, vague and ambiguous and are clearly in breach of s 208(a) and are dismissed, at [86];
10. Ground 1 is upheld on the issue of error or omission resulting in excess ballot papers and dismissed on the pleadings of illegal practices.
11. Ground 2 is upheld in part on the issue of failure of polling officials to secure ballot boxes and ballot papers for scrutiny.
12. Ground 3 is dismissed in its entirety
    

Cases Cited:

Agonia v. Karo [1992] PNGLR 463

Albert Karo v. Lady Carol Kidu [1997] PNGLR 28

Daniel Bali Tulapi v. Aiya James Yapa (2013) N5235

Daniel Tulapi v. Charles Luta (2000) SC653

Electoral Commission of PNG v Simon J Solo (2015) SC1467

Francis Koimanrea & Anor v. Alois Sumunda (2003) N2421

Holloway v. Ivarato [1988] PNG LR, 99

Iambakey Palma Okuk v. John Nilkare [1983] PNGLR 28

Jimson Sauk v. Don Polye (2004) SC 769

Manase v Polye [2009] PGNC 101

Mathias Ijape v. Bire Kimisopa (2003) N2344

Mathias Karani v. Yawa Silipa [2003] N2385

Paru Aihi v. Moi Avei (No 2) (2003) SC720

Philip Kikala v Nixon Manape & Anor (2013) SC 1295

Sir Arnold Amet v Peter Charles Yama [2010] PNGLR 87

Counsel:

Mr. Lau, for the Petitioner

Mr. G. Gileng & Mr. R. Rakatani, for the First Respondent

Ms. Alice Kimbu & Mr. W. Kaum, for the Second Respondent

RULING ON OBJECTION TO COMPETENCY OF PETITION

27^th January, 2018

1. BATARI J: The Petitioner, Dr. Hewali Hamiya contested the Hela Provincial Seat in the 2017 General Elections in a pool of 21 candidates. Philip Undialu won the elections. Dr. Hamiya polled third. Aggrieved by the circumstances and outcome of the elections, Dr. Hamiya filed this petition challenging the integrity and validity of the election result.
   

Petitioner’s Introductory Remarks

2. Setting the stage for this Petition, Mr Lau of Counsel for the Petitioner made broad introductory remarks, that widespread polling illegalities and irregularities at a number of polling places marred the Hela Provincial Electorate elections. Counsel cited existence of extra ballot papers in excess of the Common Roll; destruction of ballot papers; Assistant Presiding Officers (APOs) illegally appointing supporters of the First Respondent to assist them in marking the ballot papers during polling in breaches of sections 190 and 191 of the Organic Law on National & Local Level Government Elections (the Organic Law); lack or absence of security measures during polling; hijacking of ballot boxes and illegal markings of ballot papers. Widespread polling irregularities denied many eligible voters, the opportunity to exercise their fundamental right to freely vote, contrary to s 50 of the Constitution.
   
3. It was also submitted that at counting, servants and agents of the Second Respondent committed errors or omissions by failing to exclude from scrutiny, ballot boxes containing tainted ballot-papers. The First Respondent also committed bribery and undue influence within the meaning of s 103 and 102 of the Criminal Code.
   

Grounds of the Petition

4. The grounds of the Petitioner to invalidate the election result are:
   
   1. Errors and omissions and illegal Practices by the Second Respondent in relation to extra ballot papers in excess of the Common Roll.
   2. Errors and Omissions by the Second Respondent in not providing security to safe guard the Ballot Boxes and Ballot Papers.
   3. Illegal markings of ballot papers and hijacking of ballot boxes.
      
5. The Petitioner does not rely on bribery and undue influence as grounds to invalidate the election results. Nor does he rely on errors or omissions and illegal practices at counting to challenge the election result. Too, allegations of APOs appointing supporters of the First Respondent to mark ballot papers, is not a ground in this Petition.
   

Laws and legal principles on Objection to Competency

6. The challenge against competency of this Petition is premised on whether the grounds and the facts relied on to invalidate the election results are sufficiently pleaded to meet the requirements of s. 208 (a) of the Organic Law. Section 208 (a) reads -
   

“208. Requisites of petition.

A petition shall—

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

7. The Court’s power to deal with competency issues in election petitions is settled. Section 212(1) of the Organic Law, provides for, inter alia, the power to dismiss or uphold a petition or in part. Section 210 provides in mandatory terms, that proceedings will not be heard on a petition unless the requirements in sections 208 and 209 are complied with.
   
8. The requirement in s 208(a) for a petition to set out the facts relied upon to invalidate an election result or return is, I must say, the most utilized and sometimes abused provision by well-intended petitioners, as well as disgruntled candidates or electors for all manner of political or personal motives. Whilst s208(a) only refers to facts, it has been settled and applied over the years, to mean material and relevant facts relied on to establish a ground to invalidate an election result or return
   
9. The factual pleadings must be clear, concise and sufficient so as to indicate or constitute a ground upon which an election result may be overturned. The extent of sufficient facts depends on the facts alleged and the grounds these facts seek to establish. See, for instance; Holloway v. Ivarato [1988] PNGLR 99; Agonia v. Karo [1992] PNGLR 463, Albert Karo v. Lady Carol Kidu [1997] PNGLR 28; Paru Aihi v. Moi Avei (No 2) (2003) SC720; Sir Arnold Amet v. Peter Yama [2010] PNGLR 87.
   
10. This is where many election petitions are often frustrated and bogged down with objections to competency. Poor standard of drafting and pleading of grounds and facts in support thereof under s 208(a) often end up with verbose, convoluted, vague and incomprehensible pleadings, often given rise to competency challenges. Complaints of knit-picking of procedural forms and legalistic analysis are also raised. For now, there is division of opinion in the approach to judicial scrutiny of petitions. The two notions that have evolved over the years in the application of s 208(a) are loosely referred to as the rigid or strict standard of scrutiny and opposite to that is the flexible or liberal approach. The two notions are however on par on the required standard to plead sufficient material relevant facts and not the evidence, to constitute or establish a ground to set aside an election result or return.
    
11. A third proposition which may be described as the middle approach articulated by his Honour, Injia, CJ in Daniel Bali Tulapi v. Aiya James Yapa Lagea (2013) N5235 is where, judicial scrutiny of a petition’s competency under s 210 is driven by fairness, purpose and substance; rather than procedural style, form and legal technicalities.
    

Approach in assessing the Petition

12. In this case, the pleadings of facts supporting or intended to establish each of the three grounds of the petition are purportedly set out in paragraphs 22 to 74 of the Petition. I said, ‘purportedly’ because the second line of the opening paragraph of the Petition states, “The facts relied on to invalidate the return of the First Respondent are set out as follows ...”
    
13. The principal contention of the Petitioner is for the Court to read the pleadings of the facts as a whole, consistent with the liberal approach and not to knit-pick each minute detail of the procedural form, paragraphs, words and phrases as the respondents are advocating in this case.
    
14. I agree. However, the pleadings read together or standing alone must make sense. An allegation standing alone or read together with other statements of facts must be set out in clear and concise form to support or establish each charge of errors or omissions by electoral officials or illegal practices.
    
15. I bear in mind that reading the petition as a whole to ascertain the real issues can present some difficulty for the petitioner if the pleadings are vague, verbose, convoluted, riddled with evidence and confusing. Such manner of pleadings is tantamount to telling the court, here’s my complaint; sift through the materials to discern the real issues. This will offend against the required standard for compliances with s 208 (a) of the Organic Law. What his Honour Sheehan J in Agonia v Karo [1992] PNGLR 463 stated is relevant on this point;
    

“Any aggrieved person has a right to bring a petition challenging an election for breaches of the electoral process. But an election process does not inaugurate some general inquiry into the process of an election to see if any offence or omissions have occurred. A Court of Disputed Returns is not an open forum for unspecified complaints where, after all parties have aired their dissatisfaction, the court sifts the complaints and reports whether, on balance, the election can be considered satisfactory or whether a new election should be held. The Court of Disputed Returns has the duty of hearing and determining only those petitions which challenge an election by specific charges that, if proved will result in an election being set aside.”

16. The Petition before this court has traits of convoluted, vague and confusing pleadings of mixture of facts and evidence and pleadings in the alternative. This is not to say, the Petition fails the competency test. The question remains whether the facts pleaded are material relevant facts that are sufficient to establish a ground or grounds to invalid an election result or return.
    

Introductory/Background Paragraphs of the Petition.

17. Factual pleadings supporting each ground are set out from paragraph 22 to 75 inclusive. I will first deal with opening paragraphs 1 to 21 inclusive.
    
18. Mr Gileng of Counsel for the First Respondent in his thorough analysis of each factual pleading argued, that except for paragraph 6, the other paragraphs from 1 to 14 inclusive are introductory or background statements only. They are irrelevant and immaterial to the Petition grounds. Ms Kimbu of Counsel for the Second Respondent made similar supporting contentions.
    
19. Mr. Lau did not specifically address the form and substance of the actual paragraphs of pleadings supporting each ground of the Petitioner. Nonetheless, counsel submitted that the Petition should be read as a whole.
    
20. I agree with the respondents’ contentions. Paragraphs 1 to 14 inclusive are background information that could save the court and the parties’ time and effort with one or two passages of introductory remarks. It is possible; the statements in those paragraphs may lead to duplication and confusion with the pleadings of facts under each stated ground. That is the risk incurred for being verbose. I will however allow those statements to stand and assess their consistency with the other pleadings of facts supporting each ground of the Petition.
    
21. Paragraph 6 on the other hand makes a specific complaint of irregularity at counting or scrutiny. It alleges errors or omission by the Provincial Returning Officer (the PRO), John Tipa in proceeding into elimination count without doing quality or purity checks. There are also allegations in paragraph 6 and in other factual pleadings relating to threats by the PRO at counting. This may amount to an illegal act under the Organic Law and the Criminal Code. None of the grounds of the Petition challenges the process in counting or scrutiny of votes. Mr. Lau also concedes that the petition does not challenge irregularities at counting or scrutiny of the votes.
    
22. The facts alleged in paragraph 6 and any other sets of factual pleadings of errors or omission by electoral officials and illegal practices at scrutiny are struck out on that basis.
    
23. Paragraph 19 is general and irrelevant. It speaks of the Petitioner filing a National Court proceeding; seeking orders to stop counting because objections or disputes over ballot boxes to the PRO were unsuccessful. None of the three grounds of the petition challenges irregularities at counting. It is dismissed.
    
24. I will deal with the balance of the allegations in paragraphs 15 (and 14), 16, 17, 18, 20 and 21 together with the other allegations of facts as they appear under each separate grounds of the Petition.
    

Ground 1: Errors and omissions, and illegal practices by the Second Respondent in relation to extra ballot boxes in excess of the Common Roll.

25. The drafting of this ground presents an immediate problem. It combines allegations of errors or omissions and illegal practices into one ground. Whether it is procedurally correct to combine, errors or omissions by electoral officials and illegal practices, as one ground to invalidate an election result, may be against the Petitioner. Such drafting of a ground of a petition also poses some difficulty as the two grounds are based on different provisions of the Organic Law. Moreover, the question arises as to whether, the ground of errors or omissions by electoral officials and illegal practices, will stand or fall together.
    
26. When the issue was raised, Mr Gileng submitted that the grounds are not severable; they will stand or fall together. Mr Lau did not specifically address the issue. I have considered this as a jurisdictional issue and taken tentative views, that (i) it is not permissible to lump errors or omissions and illegal practices as a ground to annul an election result; (ii) the court has discretion to decide the grounds separately on merit from a holistic reading of the Petition without necessarily amending the grounds. The reasons are set out following.
    
27. It is pertinent to consider the enabling provisions of the Organic Law authorizing the two grounds for setting aside an election result. An allegation of error or omission comes under s 218. It is concerned with failure by an electoral official to perform his or her statutory duties. This is a separate ground with varying instances of errors or omissions in the conduct of electoral officials at polling and during counting; falling short of electoral offences under the Organic Law, the Criminal Code or breaches of the Constitution. And as a result of those errors or omissions, the election outcome is affected.
    
28. The ground of illegal practices is governed by s. 215(3). This provision sets out two scenarios in sub-paragraphs (a) and (b). According to decided authorities, the Petitioner must plead and satisfy the court on the following:
    
    • (i) The illegal practice, the subject of the complaint;
    • (ii) The illegal practice other than bribery or undue influence committed by another person but with the knowledge and authority of the winning candidate;
    • (iii) The result of the election is likely to be affected by the illegal practices, and;
    • (iv) It would be just that the winning candidate be declared not to be duly elected or the election be declared void.
      

See, Francis Koimanrea & Anor v. Alois Sumunda (2003) N2421. See also Philip Kikala v Nixon Manape & Anor (2013) SC 1295; Sir Arnold Amet v. Peter Charles Yama [2010] PNGLR 87.

29. In the recent case of Electoral Commission of PNG v Simon J Solo (2015) SC1467 the Supreme Court affirmed the distinction between, “illegal practice” and “error or omission”, averted to in Philip Kikala v Nixon Manape & Anor (supra) at paragraph 52 as follows;
    

“.....There is a difference between those two types of irregularities. An illegal practice is a criminal offence that is prescribed by the Organic Law or the Criminal Code; whereas an error or omission is an administrative irregularity such as a breach of a statutory obligation which does not carry a criminal sanction (Mune v Agiru (1998) SC590, Karo v Kidu [1997] PNGLR 28, 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 proven (Eoe v Maipakai (2013) N5066). Section 215 of the Organic Law deals with illegal practices, while Section 218 of the Organic Law deals with errors or omissions.”

30. So, it is only proper that a petition makes it abundantly clear whether an illegal practice or an error or omission is being alleged. Clarity, purpose and substance will be achieved if an error or omission and an illegal practice is separately pleaded as a ground of the petition. This is because, the requirement as to what has to be proven in order to invalidate an election result differs according to which ground is proven under s. 215 (illegal practices) or s. 218 (errors or omissions) of the Organic Law. It is trite that different principles apply in dealing with errors or omissions by electoral officials as opposed to illegal practices. The two grounds also involve different processes and standards of proof where for instance, the standard of proof for an illegal practice is closer to the criminal standard of proof. On the other hand, errors or omissions do not automatically void an election unless it is pleaded and shown that the errors or omissions affected the result of the elections.
    
31. For both situations, the standard of drafting factual pleadings of errors or omissions or illegal practices in clear and succinct terms is the same. That standard will properly and plainly inform the opposing party of what to defend and to the Court, the issues are clear.
    
32. In this case, it may be untenable to lump charges of errors or omissions together with illegal practices into one ground. This ground may be struck out on the whole on the basis of procedural error or in part in the exercise of judicial discretion. Other than dismiss the ground on this procedural point, I will proceed to consider the factual pleadings supporting the ground on the merits and decide whether the two grounds in one are inseparable or not, that is, whether the two grounds will stand or fall together.
    
33. Mr Lau submitted that the factual pleadings in paragraphs 1 through to 75 of the Petition are drafted with clarity to support the specific errors or omissions and illegal practices upon which this Petition is grounded. All these paragraphs must be read as a whole document rather than knit-picking the individual paragraphs in determining the competency issues.
    
34. The Petitioner’s contention means that one has to move back and forth in search of connections and clarifications to ascertain and make sense of the relativity of a particular statement alleged in support of a ground of the Petition. This is a sound proposition so long as the reading of the petition as a whole does not leave the Court and the respondents guessing as to what is being alleged. It is important that the petition plead essential facts in an orderly fashion in conformity with settled principles. I agree with the respondents that the court should not accept and ought to strike down pleadings that are vague, lacking in sufficient facts, substance and clarity or that tend to plead alternatives.
    
35. A ground of a petition must be clearly pleaded together with the facts and if necessary, relevant provision of legislation, Organic Law or Constitution, relied on to invalidate an election result or return. Reading a petition holistically, may be easier if the facts relied on show essential connections by cross-referencing or by use of sub-paragraphs. Failing that may be detrimental to the petitioner’s case because it is not for the court and the respondents to work out what the petitioner is really alleging: Daniel Tulapi v. Charles Luta (2000) SC653. His Honour Kandakasi J with respect, adopted a more restrictive approach by suggesting in, Mathias Ijape v. Bire Kimisopa (2003) N2344, that if the Court were to read a petition as one without that being indicated in the petition, it would have the effect of amending the petition contrary to s. 208 (e) of the Organic Law.
    
36. The respondents have usefully analyzed each paragraph and submitted, the pleading of the facts supporting the ground is a mixture of fact and evidence; it is general and vague and tends to plead alternatives.
    
37. It is clear to me that the central focus of Ground 1 is the extra ballot papers in excess of the Common Roll figure. Mr. Lau submitted that the objections to Ground 1 are misconceived because the Petition clearly alleges errors and omissions complained of, apply to counting and not polling.
    
38. Counsel’s contention is misconceived and confusing. It is inconsistent with the three grounds as set out in the Petition. None of those grounds relied on to invalid the election result pleads errors or omissions or illegal practices at the scrutiny of votes. Counsel had also conceded at the outset, the Petitioner does raise or rely on a ground pertaining to conduct of counting or scrutiny.
    
39. The factual pleadings here starts off in paragraph 22 with the claim that electoral officials failed to avail the public, opportunity to inspect the Common Roll for Hela Province prior to start of polling. Paragraphs 23 to 27 raise matters pertaining to the existence of a Final Common Roll. I agree with the respondents, those are matters of evidence. They are struck out on that basis.
    
40. Paragraphs 14 and 15 assert that Assistant Returning Officers and polling officials hijacked ballot boxes and filled them outside gazetted polling stations of Katmago, Koroba and Awi in the Koroba-Kapiago Open Electorate. The catch word, ‘hijack’, describes an illegal act. Together with claims of stuffing of ballot boxes, they amount to illegal practices.
    
41. The opening line in paragraph 16 alleges that 19 ballot boxes for Kopiago Local Level Government were tampered with by polling officials. There were no names mentioned. Paragraph 17 alleges that 13 ballot boxes for Awi were tampered with by polling officials. Paragraph 33 pleads errors or omissions and illegal practices resulting in excess votes of 12, 821.
    
42. Paragraphs 14, 15, 16, 17 and 33 when read together support the ground of illegal practices and errors or omissions on the part of electoral officials. The cumulative effect of these paragraphs is that the Second Respondent committed errors or omissions and illegal practices resulting in extra ballot papers in excess of the Common Roll figure.
    
43. In addition to the background information in paragraphs 15 to 21, the particulars that purport to support the grounds of errors or omissions and illegal practices are set out in eight pages of 15 paragraphs. Paragraph 20 is mere restatement of the responsibility of the Second Respondent in the conduct of the National Elections. It is struck out. Paragraph 21 pleads that electoral officials committed errors and omissions and illegal practices in the conduct of polling and scrutiny which affected the result of the election.
    
44. The factual pleadings in those paragraphs above pertaining to irregularities in counting or scrutiny of votes are struck out for not supporting a ground of the petition.
    
45. Paragraph 28 states that during counting, a Howard Matiabe, scrutineer for the Petitioner, disputed boxes because they contained more ballot papers than there were electors on the Preliminary Common Roll. Save, where excess ballot papers are mentioned, the dispute over counting of votes does not support a separate ground of the petition. That part of the factual pleading is struck out.
    
46. The issue of excess ballot papers is connected with the alleged errors or omissions by electoral officials at polling. The alleged errors or omissions in the context of ballot boxes being left insecure and unguarded by polling officials are in order. Allegations of errors or omissions relating to objections at the time of scrutiny under s.152 or 153A of the Organic Law are struck out. They do not support a ground of the Petition.
    
47. The story of excess ballot papers originated at counting. It is connected with the general gist of the pleadings that the ballot papers admitted for scrutiny were in excess of one or the other of the common rolls figures used at polling. It is immaterial, which one. The allegation is that the number of ballot papers counted exceeded the registered number of electors in either the Preliminary Roll or Final Roll. The clear impression from that story is that electoral officials committed errors or omissions resulting in ballot papers excesses. Those errors and omissions are tied up with the issue of failure to provide security and safe keeping of the ballot boxes postulated in Ground 2 of the Petition.
    
48. Upon my reading of the Petition as a whole, I am of the view that the first ground upon which the election result is sought to be invalidated and the factual allegations in support thereof has substance but, only to the extent that the errors or omissions relate to ballot papers excesses. This ties up with the alleged failures of electoral officials to provide security to safe guard the ballot boxes and ballot papers which constitute Ground 2. In that regard, I am of the view that the purpose, essence and substance of the factual pleadings of excess ballot papers have met the requirements of s 208(a). Hence, part of the first ground’s pleadings are in order and they should proceed to trial.
    
49. In coming to that conclusion, I am guided by the view expressed by his Honour, Injia, CJ in Tulapi v. Yapa (supra) 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.”
    
50. I also adopt the sentiments expressed in Sauk v Polye (supra) that;
    

“Because of the frequent nit-picking technical objection raised in the guise of real substantive issues of competency or jurisdiction (based either on ss. 208, 209 and 210 Organic Law, supra, or ss. 50 and 103 Constitution), some very serious and wholesale irregularities, not to mention blatant illegal practices, at the campaign, polling and counting stages of an election more often than not escape judicial scrutiny and remedy. So much so that the constitutional authority whose direct duty and responsibility is to organize, conduct and complete free and fair elections jumps on the bandwagon, as it were, to suppress (or have struck out or dismissed) any complaints about or challenges to the conduct of the election.”

51. On the other hand, the factual pleadings of illegal practices, fails the competency test. The pleadings omitted the essential elements s 215(3) of the Organic Law, that the illegal practices other than bribery, attempted bribery or undue influence were committed by the First Respondent or by others with his knowledge or authority under s 215(3)(a)(b). There is a further crucial omission in failing to plead, that the result of the election is likely to be affected and that it would be just that the winning candidate be declared not to be duly elected or the election be declared void: Amet v Yama (supra); Kikala v Electoral Commission (supra).
    
52. The Court has wide discretion on the issue of sufficient facts. The exercise of that discretion necessarily involves a careful consideration of the pleadings to ascertain whether sufficient material and relevant facts are set out. The case of Mathias Karani v. Yawa Silipa [2003] N2385 suggests a useful guide in stating:
    

“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 facts to show 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”.

53. In the end, I am not satisfied that the material and relevant facts required to invalidate the election outcome on the grounds of illegal practices are pleaded in clear, precise and sufficient manner to meet the requirement of s 208(a) of the organic Law. That part of Ground 1 is isolated and dismissed. The part on errors and omissions has some merits. It will proceed to trial.
    
54. The emphasis here is fairness, purpose and merits rather than procedural form and legal technicalities. Taking this approach does not necessarily amount to amending the ground of the Petition. The two grounds merged in one have been considered on their separate merits and decided accordingly.
    

Ground 2: Errors and Omissions by the Second Respondent in not providing security to safe guard the Ballot Papers and Boxes.

55. The facts pleaded in support of this ground are set out in paragraphs 38 to 68 and runs into seven pages.
    
56. Mr. Lau urged the Court to read the Petition as a whole. Counsel referred to the facts pleaded in support of the first ground of the Petition as going to support the second ground as well. The respondents’ submissions again labored on exhaustive analysis of each paragraph. This is what the Petitioner has complained of as knit-picking.
    
57. Even if true, one must not lose sight of the fact, that vague, misguided, imprecise, and duplicitous statements of alleged facts of errors or omissions and illegal practices, immersed in verbose and convoluted pleadings without cross-referencing, invites close and tedious scrutiny of the facts in each supporting statement to ensure compliance with s 208(a) of the Organic Law.
    
58. The allegation of error or omission in the second ground is specific. It is concerned with no or lack of security to safe guard Ballot Boxes and Ballot Papers. The Petitioner contends, that failure by polling officials to secure Ballot Boxes and Ballet Papers are found in the pleadings of errors or omissions in:
    
    • (a) “altering of and or discrepancies on” the tally (para 33),
    • (b) “improper counting of votes” in breach of set procedures (s.168) etc.] (para 34, 44, 45),
    • (c) non – recording of progressive totals and total allowable ballot papers on tally for count 58 to 67 (paras 36, 37),
    • (d) discrepancies as to the progressive total of the First Respondent, i.e., his progressive total increased whilst the totals for other candidates decreased, (paras 30, 42)
    • (e) making a declaration when the discrepancies if corrected would have showed that the absolute majority had not been reached.
      
59. Counsel submitted that these pleadings have on the whole clearly set out material or relevant facts constituting the ground of errors or omission by the Second Respondent which affected the outcome of the election.
    
60. I find Counsel’s contention hard to follow from the body of his written submissions. To put it into proper perspective, the factual pleadings in paragraph 33 was directly in support of the first ground of the Petition. It alleges that errors or omission and illegal practices of stuffing ballot boxes by the Second Respondent affected 29,740 votes. Of that number of votes counted, 12,821 represented excess ballot papers while the winning margin was only 1,581 votes. So, the election result was affected.
    
61. Mr. Lau submitted that the facts supporting, “improper counting of votes” relate to surplus ballot papers as pleaded in paragraph 34. Paragraphs 44 and 45 allege ballot boxes being left behind and unattended to by the PRO Mr. Tipa and polling officials after polling at 12 council wards of Kopiago LLG.
    
62. Counsel also submitted, paragraphs 36 and 37 are pleaded in support of the first ground of the Petition. They relate to extra votes (para 36) and failure of the Second Respondent to properly conduct scrutiny under the Organic Law.
    
63. I also refer to paragraphs 16, 17 and 18 from which inferences can be drawn that destruction of ballot boxes was due to failure by polling officials to secure those boxes at the end of polling.
    
64. Counsel for the respondents submitted that the Petitioner’s contentions are confusing just as the drafting of the allegations supporting the grounds are. The factual pleadings are loaded with poorly drafted allegations of errors or omissions and illegal practices at both polling and scrutiny. The respondents urged that the Petition be dismissed as it is not for the court to sift through the Petition looking for factual pleadings to support a ground. That is no different to putting all the materials before the court and leaving it to the court to work out what are the issues of facts that support a ground of the petition. This offends against the need to plead clear and concise material facts in sequential and logical manner, in support of a ground to invalidate the election result.
    
65. One can also see, the substance of Ground 2 of the Petition, is the lack of security provision to safeguard ballot boxes and ballot papers. Some statements of failures to secure the ballot boxes may not be directly stated or inferred under factual pleadings supporting the second ground but, may be found in the pleadings in support of other grounds. Those facts are discoverable from a holistic reading of the Petition. One should obviate from that. The statement of principles in Tulapi v. Yapa (supra) propagating a fair, purposeful and substance approach, opposite to procedural style, form and legal technicalities approach, is relevant for the same reasons the Chief Justice cautioned that;
    

“We should not forget that petitions are intended to be filed by petitioners in person and the involvement of lawyers is restricted to the agreement of the parties; that when an overwhelming majority of our people are ordinary people with little or no formal education, many who choose to challenge the election result or return by way of an election will be ordinary people. Simplicity, purpose and substance involving a holistic reading of the matters set out in the petition are the guiding principles that should rule the day over style, form and legal technicalities. Upon reading as a whole the grounds upon which the election result is sought to be invalidated and the factual allegations in support thereof, if the purpose, essence and substance of the factual pleadings conform to the requirements of s 208 (a), the pleadings are in order and they should be allowed to proceed to trial. For instance, a ground may be accompanied by a series of related factual pleadings that describe an event that form a single chain of events, may be scattered throughout the petition. They should be read together and as a whole in order to determine if in essence or substance, those factual pleadings support the particular ground for voiding the election. The Court should be able to extract or deduce the essential facts from such pleadings in order to satisfy itself whether they comply with the requirements of s 208 (a).

The Court’s search for simplicity, purpose and substance in the manner described does not mean lowering minimum standard of a good pleading expected of a petition as a legal document that befits the standard of legal documents filed in the high Court.”

66. Taking the cue to read the pleadings as a whole, it is clear that the second ground on lack of polling security is constituted by a series of relating factual pleadings scattered throughout the Petition on ballot boxes being left unguarded and unattended over long periods of time. This resulted in the ballot boxes being either tampered with or destroyed by disgruntled persons. The question then, in essence is, whether the Petition pleaded sufficient material relevant facts to support a specific ground to invalidate the election result or return.
    
67. In my view, there are sufficient factual pleadings to support the ground of lack of security of ballot boxes, such that the safety and safe-keeping of the ballot boxes and ballot papers were either lost or compromised by being stuffed with illegally caste ballot papers. Consequently, the errors or omissions on the part of electoral officials caused substantial variations to the ballot papers counted and that affected the result of the election.
    
68. In the exercise of the court’s discretion, I am prepared to uphold the competence of the Petition in part, on the narrower issue of polling officials failing to secure safety of ballot boxes during polling and on transit to the counting venue. Save, those factual pleadings supporting the ground of excess ballot papers, references to errors or omissions outside the issue of ballot box security are struck out. Factual pleadings supporting illegal practices are also struck out for non-compliance with s 208(a) and s 215(3) of the Organic Law.
    

Ground 3: Illegal marking and Hijacking of Ballot Boxes and Ballot Papers

69. This ground relates to illegal practices at polling. Opening paragraph 69 starts with a broad statement of allegation that in almost all council wards in the Hela Province, no common roll was used and the people were just told to line up and vote. In other polling areas, Presiding Officers, Assistant Presiding officers and Polling Officials marked ballot papers for the candidates of their choice. The facts stated are far too general. They are bound to be struck out for want of clarity and precision.
    
70. Mr Lau however submitted that paragraph 69 must be read together with paragraphs 70 to 75 inclusive and the earlier statement of facts in paragraphs 15, 17, 18 and 19. Paragraph 16, I think is also relevant. Counsel submitted that when these paragraphs are read together instead of selectively, they will show sufficient material facts have been pleaded. This contention is based on Counsel’s repeated arguments against knit-picking by the respondents.
    
71. Accepting that as a sound proposition, one must also be cautioned not to expect the court and for that matter, the respondents to be put through the tedious task of having to sift through the whole body of the Petition to resolve a situation the petitioner has created by not categorically setting out in a clear, precise and structured manner, material facts relied on to constitute a ground. The petitioner would be doing his case disservice to indulge the court with broadly wide-ranging pleading of facts.
    
72. The complaint of illegal marking of ballot papers and hijacking of ballot papers and ballot boxes are illegal acts that come under s 215(3)(a) (b) of the Organic Law in the context of an offence against the law and for which the law provides a penalty, of either a jail term or a fine: Manase v Polye [2009] PGNC 101. Offences for which charges may be laid and prosecuted under the Organic Law can be found in sections 178, 191 and 195.
    
73. On page 18 of his written submissions, Mr Lau clarified that s 215(3)(b) applies to this ground as the illegal practices complaint of were committed without the knowledge or authority of the successful candidate. Section 215(3) reads as follows -
    

(3) The National Court shall not declare that a person returned as elected was not duly elected, or declare an election void—

(a) on the ground of an illegal practice committed by a person other than the candidate and without the candidate's knowledge or authority; or

(b) on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,

unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.

74. Section 215(3)(b) is a stand-alone provision. The provision is directed at circumstances where the illegal act or undue influence occurred independently of the knowledge or authority of the candidate. The use of the term “or” in the provision edifies this interpretation. “Or” is used conjunctively to introduce the second of the two alternative situations in s 215(3)(a) and (b).
    
75. Because an illegal practice may be attributed to the winning candidate, or a third person without the knowledge or authority of the candidate, s 215 (3)(b) may be read together with s. 215(1) as suggested by Andrew J in, Iambakey Palma Okuk v. John Nilkare [1983] PNGLR 28, that:
    

“Section 215(3)(b) is confined to illegal practices other than bribery or undue influence or attempted bribery or undue influence committed by the duly elected candidate.

I think that s 215(3)(b) should be read with s 215(1). That is, that under s 215 (1), a successful candidate who commits bribery or undue influence or attempts either will have his election declared void, but if he commits some other illegal practice, then by s 215 (3) (b), the Court must apply the further test of whether that conduct resulted in any likely effect on the result and a further test again of whether it would be just to declare him not duly elected or to declare that the election is void.”

76. Stuffing ballot boxes, illegal marking of ballot papers and other illegal practices committed independently of the candidate are the types of illegal practices to which s 215(3)(b) applies. The successful candidate may also be guilty of similar illegal practices or acts other than bribery, attempted bribery or undue influence.
    
77. Paragraph 15 states that the Assistant Returning Officers and polling officials hijacked all the ballot boxes and filled them outside designated polling places. The polling places are not specified. These are possibly the LLGs named in paragraphs 14 and 16. Furthermore, paragraph 15 does not state the names of the Assistant Returning Officers and Polling Officials who hijacked the ballot boxes and illegally caste the ballot papers .
    
78. Paragraph 70 does not state what the illegal practice was. It merely states protests or objections to illegally caste votes and hijacking of ballot boxes at scrutiny. The petition does not allege, as a ground to invalidate the election results, errors and omissions by the PRO in dealing with objections to admission of ballot boxes for scrutiny of the votes. That paragraph is struck out.
    
79. Paragraph 71 is general information and irrelevant. It talks about the Petitioner initiating a failed court action to stop counting of the alleged illegal boxes after the votes were counted amidst protests and objections.
    
80. Paragraphs 72, 73 and 74 generally support the other on allegations of illegal marking and stuffing of ballot boxes for 10 specified Council Wards by Presiding Officers and Assistant Presiding Officers some of whom were supporters of the First Respondent. Paragraph 73 in essence pleads the evidence. In the allegations, some names of the Presiding Officers and Assistant Presiding Officers are not stated. It is necessary to name in particular, those alleged supporters of the First Respondent because that will inform him early of what allegations he has to respond to. Paragraph 75 pleads, that the number of tainted ballot papers at 8,622, was more than the winning margin of 1,581.
    
81. Returning to the other pleadings, paragraph 16 is loaded with references to illegal voting by polling officials; destruction of ballot boxes by disgruntled voters; retrieval of 2 ballot boxes from the 19 left unattended by polling officials; objection against admission of the two ballot boxes for counting and scrutiny of only one of the boxes that went past the objection. It lacked clear and precise pleading of the allegation of illegal practices.
    
82. Paragraph 17 mentions 13 ballot boxes were hijacked and ballot papers illegally marked by polling offices. It also mentions objections to counting of the 13 at scrutiny. Paragraph 18 ties up paragraphs 16 and 17. The three paragraphs read together with paragraphs 69 to 75 lacked sufficient, clear and precise essential facts to support the ground on illegal practices.
    
83. Assuming that sufficient material facts are pleaded to satisfy the requirements of s 208(a) of the Organic Law, a further test to apply is whether the pleadings of the relevant conduct is likely to affect the result or return and whether it would be just to declare the winning candidate not duly elected or to declare that the election is void.
    
84. The principle in pleading the relevant provisions of s 215(3) (a) (b) of the Organic Law is now settled. The Petitioner must plead in the body of the Petition and demonstrate with figures, how the result of the election is likely to be affected and how it is just that the candidate should be declared not to be duly elected or that the election should be declared void. The rationale is to give some fairness to the winning candidate who had no hand in the illegal practice. See, Kikala v Manape (supra); Amet v Yama (supra).
    
85. In this case, material relevant facts under s 215(3) of the Organic Law are not pleaded. The crucial omission is the non-pleading of facts to show why it is just that the candidate who was elected be deemed not to be duly elected and why the election should be declared void. So, I find that the allegations of illegal practices pleaded in paragraphs 69 to 75 of the Petition, considered individually or collectively, are deficient in material facts, vague and ambiguous and are clearly in breach of s 208(a). The ground is dismissed in its entirety.
    

Orders:

1. Ground 1 is upheld on the issue of error or omission resulting in excess ballot papers and dismissed on the pleadings of illegal practices.
2. Ground 2 is upheld in part on the issue of failure of polling officials to secure ballot boxes and ballot papers for scrutiny.

3. Ground 3 is dismissed in its entirety.
4. Each party shall bear own costs.
5. Trial is ordered on the surviving grounds and factual allegations.
________________________________________________________________
Niuage Lawyers: Lawyers for the Petitioner
Posman Kua Aisi Lawyers: Lawyers for the First Respondent
Kimbu & Associates: Lawyer for the Second Respondent