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National Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]
EP NO. 73 OF 2017
IN THE MATTER OF A ELECTION DISPUTED RETURN FOR THE KANDEP OPEN ELECTORATE
BETWEEN
DON POMB POLYE
Petitioner
AND
LUKE ALFRED MANASE
First Respondent
AND
ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Second Respondent
Waigani: Makail, J
2018: 3rd April & 5th July
ELECTION PETITION – Objection to competency of petition – Grounds of – Failure to plead facts – Allegations of bribery and undue influence – Allegations of illegal practices and errors or omissions at polling and counting – Whether sufficient facts pleaded – Whether facts show results likely to be affected or was affected by the illegal practices and errors or omissions – Organic Law on National and Local-level Government Elections – Sections 208 (a), 215 & 218
Cases cited:
Ben Semri v. Duangha (2013) N4989
David Wama Sokoreka v. Robert Naguri & Electoral Commission (2018) N7207
Edwin Baafe v. Hon. Peter Sapia & Electoral Commission (2018) N7123
Jim Nomane v. Wera Mori (2013) SC1242
Jimson Sauk v. Don Polye (2004) SC769
Ken Fairweather v. Jerry Singirok (2013) SC1293
Mathias Karani v. Yawa Silupa & Electoral Commission (2003) N2385
Michael Kandiu v. Hon. Powes Parkop & Electoral Commission (2015) SC1437
Philip Kikala v. Electoral Commission (2013) SC1292
Pila Niningi v. Electoral Commission (2013) N5322
Reipa v. Bao [1999] PNGLR 232
Counsel:
Ms. H. Masiria, for Petitioner
Mr. I. Molloy, for First Respondent
Mr. S. Ranewa, for Second Respondent
RULING ON OBJECTION TO COMPETENCY
5th July, 2018
1. MAKAIL, J: According to the petition filed on 12th September 2017, the petitioner, Mr Polye is aggrieved by the result of the election for Kandep Open electorate of the Enga Province and petitions the Court to review it. Before that can be done, the Court must be satisfied that it is competent to proceed to trial based on two notices of objections to competency; one by the first respondent Mr. Manase filed on 10th October 2017 and the other, the second respondent, the Electoral Commission on 21st November 2017.
Grounds of Objection
2. The objections are based on failure to plead facts contrary to Section 208(a) of the Organic Law on National and Local-level Government Elections (“Organic Law”). Section 208(a) of the Organic Law states that “A petition shall set out the facts relied on to invalidate the election or return.” It would follow that the survival of the petition is dependent on the compliance with the requirement of Section 208(a) of the Organic Law. Where non-compliance is established, the petition will be incompetent and dismissed.
Grounds of Petition
3. The petition is grounded on two allegations of bribery, four allegations of undue influence and a number of allegations of illegal practices and errors or omissions at polling and counting.
Issue
4. The issue is whether there are facts to establish the allegations of bribery, undue influence, illegal practices and errors or omissions at polling and counting.
Bribery
5. In a case where an offence of bribery under Section 103 of the Criminal Code is alleged, the facts which must be pleaded are first, the name of the person, secondly, the giving, conferring or procuring of, thirdly, the name of the property or benefit of any kind, fourthly, to another named person and finally, for doing or not doing anything, or to do or not to do or anything, by an elector at an election in the capacity as an elector; or on account of any person acting or joining in a procession during an election or in order to induce any person to endeavour to procure the return of any person at an election, or the vote of any elector at an election. Furthermore, it must be pleaded that the person bribed was an elector. (Emphasis added).
6. The petition pleads:
Bribery by the first respondent at Lungutenges 2 Ward 49, Kandep Rural LLG
(1) On Saturday 8 July 2017, at around 9:00am at Lungutenges 2 village the First Respondent personally gave monies totalling a sum of K1000.00 in cash to Ambon Alumali, the councillor for Lungutenges 2 Ward, (sic) the presence of certain eligible voters namely Kartoto Yalao, Elias Amaen, Meck Ambon, Dit Ambon and Justin Isaac, and uttered words to Ambon Alumali to the effect that:
(a) “Mi givim yu K1,000 lo stoppim yu no ken go lukim ol security na electoral officials. Sapos yu i laik votim narapela candidate ok bai mipla givim yu 70pla ballot pepa long yu wantaim ol pipol blong yu. Yu ken raitim vote bilong narapela candidate”.
(b) Ambon Alumali agreed and said “OK mi kisim K1000.00 na 70pla ballot pepa yupla tearim na givim mi long en”.
(2) The purpose of the monies given by the First Respondent was intended to stop Ambon Alumali from reporting the hijacking of ballot papers at Lungutenges 2 village, by the First Respondent thereby interfering with the proper conduct of elections in the Kandep Open Electorate, in that eligible voters from the Lungutenges 2 Ward were not able to cast their votes.
(3) The First Respondent committed bribery contrary to section 103 of the Criminal Code Act and section 215 of the Organic Law on National and Local Level Government Elections.
7. It is not contested that the following facts have been pleaded: first the place and time of the alleged bribery, it being Lungutenges 2 Ward 49 of Kandep Rural LLG on Saturday 8 July 2017 at around 9:00 am, secondly, the identity of the person alleged to have been bribed, he being Ambon Alumali, the councillor of Lungutenges 2 Ward and thirdly, the property or benefit given, conferred or procured, it being cash of K1,000.00. Further, that the first respondent as the perpetrator within the meaning of Section 103 of the Criminal Code and Section 215(1) of the Organic Law.
8. The objection is based on the following grounds:
(a) Lack of facts in relation to the inducement by the first respondent. It was submitted on behalf of the first respondent by counsel that the words spoken by the first respondent did not amount to an inducement and that, the purpose of the payment was to stop Ambon Alumali from reporting the hijacking of ballot-papers and the interference of eligible voters from casting their votes. However, given the words “for doing or not doing anything, or to do or not to do or anything, by an elector at an election”, the definition of bribery under Section 103 of the Criminal Code is broad and not restricted to a case where the petitioner must alleged that the perpetrator induced a person to procure the return of a person (eg, the first respondent). On the other hand, it can cover a case as alleged in this case where the element of inducement by the first respondent is sufficiently pleaded in the form of words being uttered by the first respondent to Ambon Alumali to the effect that Alumali should not report the hijacking of the ballot papers at Lungutenges 2 village in return for K1,000.00 cash. I am satisfied the facts as pleaded are sufficient to establish the element of inducement. This ground of objection must fail. It is dismissed.
(b) The specific provision of the Criminal Code in Section 103 has not been identified. It was submitted that the precise provision of the Code should have been identified and pleaded: Jim Nomane v. Wera Mori (2013) SC1242 compare Ken Fairweather v. Jerry Singirok (2013) SC1293 at [29]. This ground must fail because it is not mandatory to plead law. However, it is preferable that a prudent petitioner may plead the relevant sub-section of Section 103 which may be applicable to the type of bribery offence alleged but a failure to plead it is not fatal to the petition: see Michael Kandiu v. Hon. Powes Parkop & Electoral Commission (2015) SC1437 at [31]. This ground of objection must fail. It is dismissed.
(c) The alternative ground of objection is that, it must be made clear by the pleadings what is the precise bribery offence being alleged here. However, for the same reason given at (a) and (b) above, this ground of objection must fail. It is dismissed.
(d) There is no allegation that Ambon Alumali was an elector, that he was being asked to act or join in a procession, or that he was being induced to procure the return of a person or the vote of any elector. While the further grounds of objection can be dismissed for the same reasons given at (a) and (b) above, the ground on not being an elector must succeed. For it has not been pleaded that Ambon Alumali was an elector. The pleading that “certain eligible voters” is insufficient because it does not refer to Alumali as an eligible voter but to persons identified as Kartoto Yalao, Elias Amaen, Meck Ambon, Dit Ambon and Justin Isaac. It is not alleged (pleaded) that these other persons received part of the money from Alumali. That being the case and as being an elector is a material fact to prove bribery, the failure to plead that Ambon Alumali was an elector is fatal to the entire allegation.
9. The allegation of bribery by the first respondent at Lungutenges 2 Ward 49, Kandep Rural LLG is struck out as being incompetent.
10. The petition pleads:
Bribery by the first respondent at Rugutengesa Ward 28, Kandep Rural LLG
(1) On Saturday 8 July 2017, at around 9:00am at Rugutengesa 1 village the First Respondent personally gave monies totalling a sum of K5000.00 in cash to Wita Henry, an elector of Rugutengesa, in the presence of other eligible voters namely Kipul Konabin, Lynette Tumbin Kepas and Top Yokrair and uttered words to the effect that:
(a) “....I give you all this K5,000.00 to you and supporters of [Petitioner] to share amongst yourselves, This 2017 election let me mark these ballot box for myself”.
(b) Wita Henry took the K5000.00 and agreed to distribute to supporters of Petitioner.
(2) On the same day Wita Henry, in the presence of Lynette Tumbin Kepas induce Top Yokrair, distributed the sum of K5000.00 in K100 notes to eligible voters of Rugutengesa.
(3) The purpose of the monies given by the First Respondent was intended to induce eligible voters from Rugutengesa Ward 28 including Kipul Konabin, Lynette Tumbin Kepas and Top Yokrair and Wita Henry, from casting their votes for the Petitioner.
(4) The ballot box for Rugutengesa no. EC 011268 contained 560 ballot papers out from which the First Respondent polled 516 votes and the Petitioner polled no votes.
(5) The action of the First Respondent thereby interfered with the proper conduct of elections in the Kandep Open Electorate, in that eligible voters from the Rugutengesa Ward 28 were not able to cast their votes.
(6) The First Respondent committed bribery contrary to section 103 of the Criminal Code Act and section 215 of the Organic Law on National and Local Level Government Elections.
11. In this case, it is not contested that the following facts have been pleaded: first the place and time of the alleged bribery, they being Rugutengesa Ward 28 of Kandep Rural LLG on Saturday 8 July 2017 at around 9:00 am, secondly, the identity of the person allegedly bribed, he being Wita Henry, an elector of Rugutengesa village and thirdly, the property or benefit given, conferred or procured, it being cash of K5,000.00. Further, that the first respondent as the perpetrator within the meaning of Section 103 of the Criminal Code and Section 215(1) of the Organic Law. Finally, that Wita Henry was an elector.
12. The objection is based on the following grounds:
(a) It is a confusing pleading because first it has the first respondent in two places at once, doing separate things when it is read together with the first allegation of bribery by the first respondent at Lungutenges 2 village on Saturday 8 July 2017 at around 9:00 am. Secondly, the allegation at paragraph 3 is the purpose “of the monies.... was intended to induce voters.......from casting their votes for the Petitioner”. It contradicts the relevant words uttered by the first respondent that “This 2017 election let me mark these ballot box for myself”. These grounds must fail because first, the challenge is not directed at the lack of facts but what should be an issue for trial. For if the allegation of bribery by the first respondent occurred at two places at once, it is for the defence to challenge the veracity of the allegations and evidence led by the petitioner at trial to discredit either one or both. As to the second ground, the objection is tantamount to nit-picking. When the facts constituting the allegations are read as a whole, the combine effect is that the first respondent uttered the words alleged to induce Henry and other electors at Rutungentesa to vote for him in the 2017 election in return for cash of K5,000.00. As observed at 8 (a) and (b) above, the definition of bribery under Section 103 of the Criminal Code is broad enough to cover this type of case of bribery. These grounds of objection must fail. They are dismissed.
(b) The next ground of objection is that, it has not been explained (possibly due to lack of pleadings) how electors were not able to cast their votes. This ground is dismissed because it is immaterial to plead how and to whom electors cast their votes. What is material is that there are facts to establish that cash of K5,000.00 was given by the first respondent to Henry to distribute to electors to induce them to return the first respondent as elected or obtain a vote of any person at an election. This ground of objection is dismissed.
(c) The alternative ground of objection is that, it must be made clear by the pleadings what is the precise bribery offence being alleged here. However, for the same reasons given at 8 (a) and (b) above, this ground of objection must fail. It is dismissed.
13. The allegation of bribery by the first respondent at Rugutengesa Ward 28, Kandep Rural LLG is competent and will proceed to trial.
Undue Influence
14. Where an offence of undue influence is alleged under Section 102 of the Criminal Code, the identity of the perpetrator, use or threatens to use any force or restraint, or does or threatens to do any temporal or spiritual injury, or causes or threatens to cause any detriment of any kind to an elector must be pleaded. Secondly, the identity of the elector must be pleaded and the form of inducement of the elector to vote or refrain from voting at an election or on account of his having voted or refrained from voting at an election must be also pleaded. Finally, the type of force or fraud to prevent or obstruct the free exercise of the franchise by an elector, or by any such means to compel or induce an elector to vote or refrain from voting at an election must be pleaded. These are the material facts constituting the offence of undue influence.
15. The identity of the candidate as the perpetrator must be pleaded to comply with Section 102 of the Criminal Code and Section 215(1) of the Organic Law. Where the perpetrator is a person other than a candidate, the identity of the person must be pleaded and furthermore, that the offence of undue influence was committed by the perpetrator with the knowledge or authority of the successful candidate under Section 215(3)(a) of the Organic Law. See also Edwin Baafe v. Hon. Peter Sapia & Electoral Commission (2018) N7123 and David Wama Sokoreka v. Robert Naguri & Electoral Commission (2018) N7207.
16. The petition pleads:
Undue influence at Rumbipak Ward 6, Wage LLG
(a) On Saturday 8 July 2017, at around 9:00am, at Lumpiaka village, supporters of the First Respondent led by James Kepas armed with an M16 rifle and homemade guns and bush knives, threatened and used force on the polling officials and eligible electors including John Lakai, Councillor of Rumbipak, Hoep Horol and Albert Mudumi and forcefully removed the ballot box for Rumbipak No. EC 011278 containing a total of 815 ballot papers and marked them in favour of the First Respondent.
(b) There was no security personnel provided for the polling site.
(c) The actions of the (sic) James Kepas prevented eligible voters from Rumpipak village including John Lakai, Koep Horol and Albert Mundumi from casting their votes at Lumpiaka thereby interfering with the proper conduct of the election.
(d) The First Respondent polled 704 votes from the total 814 ballot papers contained in the ballot box for Rumpipak No. EC 011278.
(e) The First Respondent through his servants and agents committed an undue influence contrary to section 102 of the Criminal Code Act and section 215, of the Organic Law on National and Local Level Government Elections.
17. There is no allegation that the first respondent was the perpetrator. But there is no contest it has been pleaded that it was his supporters led by James Kepas who threatened and forcefully removed the ballot-box from polling officials with use of firearms and bush knives.
18. But the ground of objection is that there is no allegation that the James Kepas and the other supporters acted with the knowledge or authority of the first respondent. It was submitted on behalf of the first respondent that electoral law does not import the common law principle of vicarious liability whereby a principle can be sued for the tortuous acts or omissions of his servant or agent. The petitioner submitted that this ground of objection should be dismissed because it has been pleaded at paragraph B (8) of the petition that the alleged offence was committed by supporters of the first respondent with his knowledge or authority.
19. If pleading facts in a petition are to be coherent, consistent and logical so that the reader is able to read and understand what the petitioner is intending to convey to the reader, the allegation of fact that the offence of undue influence at Rumbipak village was committed by the supporters of the first respondent with his knowledge or authority must form part of the facts in the paragraphs of the petition. To not do that will be misleading and confusing to the reader. Here, it is pleaded elsewhere in the petition. This may explain why the first respondent has objected to this allegation on this ground.
20. However, it is difficult to overlook the petitioner’s claim that he has pleaded this allegation at para. B (8). It is not an ideal to plead the allegation of knowledge or authority of the first respondent elsewhere in the body of the petition but at the very least, it has been pleaded. It is sufficient for the present purpose. This ground of objection is dismissed.
21. The allegation of undue influence by supporters of the fir11st respondent led by James Kepas at Rumbipak Ward 6, Wage LLG on Saturday 8 July 2017 is competent and will proceed to trial.
22. The next allegation is in the following terms:
Undue influence in Wapi Village Ward 2, Wage LLG
(a) On Saturday 8 July 2017, at around 10:00am, at Wapi village, supporters of the First Respondent led by Kii Nom, Thomas Minap, Nupela Korr and Naal Paap armed with M16 rifle and homemade guns, axes and bush knives threatened polling officials and eligible voters including Lupi Angaup, Councillor of Wapi, Ken Kuni and Michael Kus, and forcefully removed the ballot box for Wapi No. EC 011274 containing a total of 1031ballot papers and marked 829 in favour of the First Respondent.
(b) There was no security personnel provided for the polling site.
(c) The actions of Kii Nom, Thomas Minap, Nupela Korr and Naal Paap prevented eligible voters in Waipi, including Lupi Angaup, Ken Kuni and Michael Kus, from casting their votes at Lumpiaka thereby interfering with the proper conduct of the election.
(d) The First Respondent polled 829 votes from the total 1031 ballot papers contained in the ballot box for Wapi No. EC 011274.
(e) The First Respondent through his servants and agents committed an undue influence contrary to section 102 of the Criminal Code Act and section 215, of the Organic Law on National and Local Level Government Elections.
23. Again, there is no allegation that the first respondent was the perpetrator. But there is no contest it has been pleaded that it was his supporters led by Kii Nom, Thomas Minap, Nupela Korr and Naal Paap who threatened and forcefully removed the ballot-box from polling officials with use of firearms and bush knives.
24. In addition to the ground on lack of facts in relation to knowledge or authority of the first respondent, the another ground of objection is that there are no facts on the actual or threatened use of force or restraint within the meaning of Section 102(a)(i) or (ii) of the Criminal Code. Furthermore, there are no facts on the force used or fraud preventing or obstructing the free exercise of the right to vote, or restraint or prevention of voting within the meaning of Section 102(b) of the Criminal Code.
25. The objection based on failure to plead knowledge or authority of the first respondent is dismissed for the reasons given at paragraphs 18, 19 and 20 above. As to the further ground of objection, where the allegation is that the perpetrators of the alleged offence were armed with firearms, axes and bush knives and threatened and forcefully removed the ballot-box from polling officials, it is difficult to see how such allegation lacked facts. To insist on details of how the force or threat were carried out or executed is tantamount to asking the petitioner to plead evidence which is not allowed and should be left for trial. These grounds of objection are dismissed.
26. The allegation of undue influence by supporters of the first respondent led by Kii Nom, Thomas Minap, Nupela Korr and Naal Paap at Wapi Village Ward 2, Wage LLG is competent and will proceed to trial.
27. The next set of allegation is in the following terms:
Undue influence in Pura No. 2, Ward 39, Kandep Rural LLG
(a) On 8 July 2017, at around 9:00am to 10:00am, the ballot box for Pura No. 2 ballot box No. EC O11266 the servants and agents of the First Respondent led by Jeffrey Mari, Councillor of Pura 2, in the company of Poro Mangol, Maas Naon Mari and others, armed with M16 rifle and homemade guns, axes and bush knives threatened and demanded polling officials and eligible voters including James Salip that the ballot papers be marked in favour of the First Respondent only.
(b) There was (sic) no security personnel on the polling site.
(c) Apart from 105 ballot papers which were given to James Salip and supporters of other candidates by Jeffrey Mari to mark for their preferred candidate.
(d) The actions of Jeffrey Mari prevented eligible voters from Pura 2, from casting their votes thereby interfering with the proper conduct of the election.
(e) The First Respondent polled 606 votes from the total 711ballot papers contained in the ballot box.
(f) The First Respondent through his servants and agents committed an undue influence contrary to section 102 of the Criminal Code Act and section 215, of the Organic Law on National and Local Level Government Elections.
28. Once again, there is no allegation that the first respondent was the perpetrator. But there is no contest it has been pleaded that it was his supporters led by Jeffrey Mari in the company of Poro Mangol and Maas Naon Mari who threatened and forcefully removed the ballot-box from polling officials with use of firearms, axes and bush knives.
29. The grounds of objections are based on lack of facts in relation to how the first respondent’s supporters used force and
threats against the polling officials and eligible voters including James Salip and identity of voters. Further, none of the polling
officials have been identified in the pleadings. These grounds are tantamount to nit-picking for the reasons given at paragraph
25 above. Furthermore, James Salip has been identified as one of the voters and is sufficient for the defence to locate and verify
the allegation with him, if it wishes.
30. The next ground of objection is in relation to failure to plead facts in relation to the knowledge or authority of the first respondent.
For the reasons given at paragraphs 18, 19 and 20 above, it is dismissed.
31. The allegation of undue influence by supporters of the first respondent led by Jeffrey Mari in the company of Poro Mangol and Maas Naon Mari at Pura No. 2, Ward 39, Kandep Rural LLG on Saturday 8 July 2017 is competent and allowed to proceed to trial.
32. The petition further pleads:
Undue influence in Kambia No. 1, Ward 11 (Papalya), Kandep Rural LLG.
(a) On 8 July 2017, at around 10:00 am the ballot box No. EC11264 for Kambia 1 was brought to the polling site at Papalya. There the supporters of the First Respondent led by Torom Leseri, Sos Tangui and others armed with M16 rifles and homemade guns, axes and bush knives used force and threatened polling officials and eligible voters including Yalo Tonai and Mark Wasun, and forcefully removed ballot papers.
(b) Apart from 27 ballot papers which were given to Yalo Tonai and other eligible voters to mark their preferred candidate by the Presiding Officer Buka Toang, the rest of the ballot papers totalling 559 were marked by Sos Tangui in favour of the First Respondent and given back to the Presiding Officer and polling officials.
(c) There were (sic) no security personnel at the polling site.
(d) The actions of Torom Leseri Sos Tangui and others prevented eligible voters from Kambia No. 1 from casting their votes thereby interfering with the proper conduct of the election.
(e) The First Respondent polled 559 votes and another candidate polled 1 from the total 587 votes contained in the ballot box No. EC 11264 for Kambia 1.
(f) The First Respondent through his servants and agents committed an undue influence contrary to section 102 of the Criminal Code Act and section 215, of the Organic Law on National and Local Level Government Elections.
33. Once more, there is no allegation that the first respondent was the perpetrator. But there is no contest it has been pleaded that it was his supporters led by Torom Leseri and Sos Tangui who threatened and forcefully removed the ballot-box from polling officials with use of firearms, axes and bush knives.
34. The same sorts of grounds of objection raised in the case of undue influence at Pura No. 2 Ward 39 are raised here. They are dismissed for the same reasons as above.
35. The allegation of undue influence by supporters of the first respondent led by Torom Leseri, Sos Tangui at Kambia No. 1, Ward 11 (Papalya), Kandep Rural LLG on Saturday 8 July 2017 is competent and will progress to trial.
Illegal Practices by Other Candidates and their servants and agents
36. Where illegal practices under Section 215 of the Organic Law is alleged, facts must be pleaded to show the illegal practice, that it was either committed by a candidate or committed by another person but with the candidate’s knowledge or authority, that the result is likely to be affected and that it is just that the candidate should be declared not duly elected or the election be declared void: Mathias Karani v. Yawa Silupa & Electoral Commission (2003) N2385.
37. The petition pleads six instances of illegal practices at polling.
Hijacking of Ballot Papers
Hijacking of Ballot papers in Mamal, Ward 12, Wage LLG
(a) On 8 July 2017, at around 10:00am, the ballot box No. 011284 for Mamal was brought to the polling site at Mambaia village e by polling Team No. 64.
(b) There the servants and agents of candidate Jonathan Praia led by Poo Kolapin and others, with the knowledge and authority of Jonathan Praia, drove into the polling site in a Blue Toyota Landcruiser Troop Carrier (10 Seater) used M16 rifles, a pistol and homemade guns, axes and bush knives to threaten the polling officials and eligible voters including Win Paken and forcefully removed ballot papers totalling 1011 ballot papers.
(c) This polling materials were taken to Michael Marabe’s house in Maballa village at around 12:00pm and marked in favour of their candidates and returned back (sic) to the polling officials sealed with inner and outer tags No. 026345 and 0262346.
(d) There were (sic) no security personnel at the polling site.
(e) From the total 1011 ballot papers, candidate Jonathan Praia polled 434 votes, the First Respondent polled 291 votes, the Petitioner polled 1 vote whilst 285 was polled collectively by other candidates from ballot box No. EC 011284 for Mambal.
(f) The actions of Poo Kolapin and others, with the knowledge and authority of candidate Jonathan Praia prevented eligible voters
from Mambal including Win Paken from casting their votes, interfering with the proper conduct of the election and thereby contravening
section 108 of the Criminal Code Act and section 215 of the Organic Law on National and Local Level Government Elections.
38. In this case, there is no allegation that the first respondent was the perpetrator. The illegal act was committed by supporters,
servants and agents of another candidate by the name of Jonathan Praia with his knowledge or authority. No submissions were received
from the first respondent or second respondent in relation to whether a successful candidate should be held liable for an illegal
act committed by another candidate or supporters of that candidate with his knowledge or authority although it was submitted by the
second respondent that it was not alleged (pleaded) that the illegal act was committed “with the knowledge and authority of the First Respondent”.
39. As the allegation is one of illegal practice, Section 215(3)(a) of the Organic Law is pertinent. It refers to a “candidate” as opposed to a “successful candidate” whose conduct or that of his supporters with his knowledge or authority in the electoral process, if found to be illegal, is a ground to vitiate the election. For public policy and good governance reasons, a complaint by a candidate against another of an illegal practice despite both being unsuccessful in an election should not escape the scrutiny of the Court just because the illegal act was committed by another unsuccessful candidate or his supporters with his knowledge or authority. In other words, should the Court turn a blind eye so to speak and dismiss a serious allegation of illegal practice just because it was not committed by a successful candidate but an unsuccessful candidate or his supporters with his knowledge or authority? I think not. For these reasons, the allegation about the conduct of the supporters of the candidate Jonathan Praia falls within Section 215(3)(a) and constitutes a ground to vitiate an election.
40. The first respondent submitted generally that the allegation is deficient because based on Philip Kikala v. Electoral Commission (2013) SC1292, it is not pleaded that as a result of the illegal practice, the result of the election was likely to be affected and that it was just that the candidate should be declared not to be duly elected or that the election should be declared void.
41. Except for this objection, there is no contest it has been pleaded that it was the supporters of candidate Jonathan Praia led by Poo Kolapin with the knowledge or authority of Praia who threatened and forcefully removed the ballot-box from polling officials with use of firearms, axes and bush knives at Mambaia village on Saturday 8 July 2017 at around 10:00 am. The ballot-box was taken to Michael Marabe’s house at Maballa village and marked in favour of their candidates and returned to the polling officials. Out of 1011 ballot-papers, the petitioner score one vote and contrast that to Praia who scored 434 votes. These facts identify the perpetrator(s), place and time of the illegal act(s) and nature of the illegal act(s) and support a case of hijacking and tampering of a ballot-box. As a result, ballot-papers totalling 1,011 were compromised.
42. The question whether the illegal act was likely to affect the result of the election and further whether it is just to that the candidate (first respondent) should be declared not to be duly elected or that the election should be declared void should not be judged solely on this allegation but considered together with the remaining allegations of illegal practices.
43. The second allegation of illegal practice is in the following terms:
Hijacking of Ballot papers in Mumunt 1, Ward 2, Kandep Rural LLG
(a) On 8 July 2017, at around 9:00am to 11:00am, the ballot box for Mumunt 1 No. 011223 containing 531 ballot papers was transported to a non-gazetted polling site at Marient Catholic Parish in Marient village.
(b) There were (sic) no security personnel available or present at the site.
(c) There another candidate Peter Mission and his servants and agents led by Yapi Aum, Jeffrey Mission and others with the knowledge and authority of candidate Peter Mission, arrived armed with shot guns, and homemade guns, axes and bush knives threatened and sued force on the polling officials and eligible voters including Robert Kamela, Thomas Kamela and Buka Kep, and hijacked the ballot boxes.
(d) From the total 531 ballot papers contained in the ballot box, candidate Peter Mission polled 530 votes, the First Respondent polled 1 voted (sic) and the Petitioner polled no votes.
(e) The actions of Peter Mission and his servants and agents deprived eligible voters from Mumunt including Robert Kamela, Thomas
Kamela and Buka Kep from casting their votes, thereby interfering with the proper conduct of the election and contravening section
108 of the Criminal Code Act and section 215 of the Organic Law on National and Local Level Government Elections.
44. In this case, the perpetrators of the illegal act are supporters of candidate Peter Mission with his knowledge or authority. It
is the same sort of allegation as case one. The total ballot-papers compromised were 531. For the same reasons given in case one,
there are sufficient facts to support this allegation.
45. The next allegation is in the following terms:
Hijacking of Ballot papers in Iuripak, Ward 3, Kandep Rural LLG
(a) On 8 July 2017, at around 9:00am, the ballot box for Iuripak No. 011225 containing 734 ballot papers was transported to a non-gazetted polling site on Marient Catholic Parish, Marient Village.
(b) There another candidate Peter Mission and his servants and agents led by Yapi Aum, Jeffrey Mission and others with the knowledge and authority of candidate Peter Mission, arrived armed with shot guns, and homemade guns, axes and bush knives and used force on the Presiding Officer, polling team and eligible voters including Dominic Kandiyock, Pupai Andeap James Waro, Henru Tandap and Pero Paul and caused the ballot papers to be marked in favour of Peter Mission. There were (sic) security personnel at the new polling site directed by the Returning Officer.
(c) From the total 734 ballot papers contained in the ballot box, candidate Peter Mission polled 523 votes, Jonathan Praia polled 1 vote, the First Respondent polled 127 votes, the Petitioner polled 79 votes and other 4 votes were polled by other candidates.
(d) The actions of Peter Mission and his servants and agents deprived eligible voters from Iuripak Ward 3, including Dominic Kandiyock,
Pupai Andeap James Waro, Henry Tandap and Pero Paul from casting their votes thereby interfering with the proper conduct of the election
and contravening section 108 of the Criminal Code Act and section 215 of the Organic Law on National and Local Level Government Elections.
46. In this case, the perpetrators of the illegal act are supporters of candidate Peter Mission with his knowledge or authority. It
is the same sort of allegation as case one. The total ballot-papers compromised were 734. For the same reasons given in case one,
there are sufficient facts to support this allegation.
47. The fourth allegation is as follows:
Hijacking of Ballot papers in Karekare, Ward 21, Wage rural LLG
(a) On 8 July 2017, at around 9:00am, the ballot box for Karekare/Yumbis Ward by Team 73, ballot box No. 012930 containing total of 1617 ballot papers were hijacked at Longap village by another candidate Bill Minjikuli Tindiwi accompanied by his servants and agents led by Kep Lowape, Win Lukas, John Longap and James Lowape, who with the knowledge and authority of candidate Bill Minjikuli Tindiwi, threatened and forcefully removed the ballot box, ballot papers and other materials from polling officials, armed with rifles, homemade guns, axes and bush knives.
(b) There were (sic) no security provided for the protection of the ballot box and ballot papers and that of polling officials, except for the police reservists.
(c) From the total 1617 ballot papers contained in the ballot box, candidate Bill Minjikuli Tindiwi polled 843 votes, Jonathan Praia polled 765 votes, Peter Mission polled 3 votes, the First Respondent polled 1 vote, the Petitioner polled 1 vote and the remaining 1 vote was polled by another candidate.
(d) The actions of Bill Minjikuli Tindiwi, Kep Lowape, Win Lukas and John Longap deprived eligible voters Karekare/Yumbis including Isaiah Makamde, Paro Nanapu, Mr Puskkai Kipan, Anfi Waralip from casting their votes, thereby interfering with the proper conduct of the election and contravening section 108 of the Criminal Code Act and section 215 of the Organic Law on National and Local Level Government Elections.
49. In this case, the perpetrators of the illegal act are supporters of candidate Bill Minjikuli with his knowledge or authority. It is the same sort of allegation as case one. The total ballot-papers compromised were 1,617. For the same reasons given in case one, there are sufficient facts to support this allegation.
50. The fifth allegation is recited below:
Hijacking of Ballot papers in Peliyanjak, Ward 20, Wage LLG
(a) On 8 July 2017, at around 9:00am, the ballot box for Peliyanjak No. 011292 containing 963 ballot papers were hijacked by servants and agents of another candidate Jonathan Praia led by Michael Tambai, Frank Tindi, Ken Langaup and Willie Kai armed with rifles, homemade guns, axes and bush knives who threatened and forcefully removed the ballot box, ballot papers and other polling materials from the polling officials, with the knowledge and authority of Jonathan Praia.
(b) There were (sic) no security provided for the protection of the ballot box and ballot papers and that of polling officials, except for the police reservists.
(c) From the total 1617 ballot papers contained in the ballot box, candidate Jonathan Praia polled 813 votes, Peter Mission polled 3 votes, the First Respondent polled no vote, the Petitioner polled no vote and the remaining 150 votes was polled by other candidates.
(d) The actions of Michael Tambai, Frank Tindi, Ken Langaup and Willie Kai deprived eligible voters from Peliyanjak including Aiyap Nangen Nokope, Jeff Toko and others from casting their votes thereby interfering with the proper conduct of the election and contravening section 108 of the Criminal Code Act and section 215 of the Organic Law on National and Local Level Government Elections.
51. In this case, the perpetrators of the illegal act are supporters of candidate Jonathan Praia with his knowledge or authority. It is the same sort of allegation as case one. The total ballot-papers compromised were 1,617. For the same reasons given in case one, there are sufficient facts to support this allegation.
52. The sixth and final allegation reads:
Hijacking of Ballot papers in Imapiak, Ward 11, Wage Rural LLG
(a) On 8 July 2017, at around 9:00am at Longap village, the Ballot box for Imapiak Ward 11, ballot box no. EC 011283 containing total ballot papers of 960 were hijacked by servants and agents of another candidate Jonathan Praia led by Enoch Yangala, Langan Muir, Waso Kukin and Michael Pipila, armed with rifles, homemade guns, axes and bush knives who threatened and forcefully removed the ballot box, ballot papers and other polling materials from the polling officials.
(b) There were (sic) no security provided for the protection of the ballot box and ballot papers and that of polling officials, except for the police reservists.
(c) All 950 ballot papers contained in the ballot box were polled by candidate Jonathan Praia.
(d) The actions of Enoch Yangala, Langan Muir, Waso Kukin and Michael Pipila deprived eligible voters from Imapiaka including Luia Napome, Akore Peape and others rom casting their votes thereby interfering with the proper conduct of the election and contravening section 108 of the Criminal Code Act and section 215 of the Organic Law on National and Local Level Government Elections.
(e) The total Ballot papers contained in the ballot boxes for the polling venues mentioned in paragraphs 3, 1 (1), (2), (3), (4), (5) and (6) of thus petition totalled a sum of 5,821 ballot papers used in the illegal practices by the First Respondent and other candidates.
(f) The winning margin was 3,004 votes and therefore the result of the election was likely to be or is affected.
53. In this case, the perpetrators of the illegal act are supporters of candidate Jonathan Praia. It is the same sort of allegation as case one. However, it will be struck out as being defective and incompetent for this simple reason. While it is pleaded in each of the other allegations of illegal practices that the illegal practices by the supporters of named candidates were with the knowledge or authority of the named candidates, this one does not. This omission is a fatal to the entire allegation as there is no nexus established between the candidate and the supporters under Section 215(3)(a)of the Organic Law. This allegation is struck out: see also Edwin Baafe (supra) and David Wama Sokoreka (supra).
54. Excluding illegal practice case six, for illegal practice cases one to five, adding the number of ballot-papers allegedly compromised in each case gives a total of 5,510. Where it is alleged (pleaded) at paragraphs 6 and 7 of the petition that the absolute majority (50% + 1) was 21,343 and the first respondent scored 24,347 giving a winning margin of 3,004 votes, it is obvious that 5,510 ballot-papers being compromised was likely to affect the result of the election and to express it in the pleadings is self-serving. It is quite difficult to expect a further statement of fact that it is just that the candidate (first respondent) should be declared not duly elected or the election be declared void when it is quite obvious that such would be the conclusion of the Court, if the allegations were upheld. It would suffice that these allegations be tested at trial.
55. To sum up, allegations of illegal practices cases one to case five are competent and will progress to trial. Allegation of illegal practice case six is defective and will be struck out forthwith.
Errors and Omissions by the Second Respondent and its Servants and Agents
56. In a case where the allegation is one of errors or omissions, the error or omission must be directly connected to the duty of an electoral official and its breach by the electoral official. Then the test applied under Section 218 of the Organic Law is that the error or omission did affect the result of the election. In terms of pleading the facts, it must be expressed how the error or omission affected the number of votes and in turn the result of the election.
57. The petition pleads:
58. The first respondent’s first ground of objection is that the pleading is confusing because it is not clear when it is alleged that the common roll (or preliminary roll) was not “used” by the polling officials. For example, it is not pleaded if the error or omission was made by electoral officials or persons tasked with the duty to compile the common roll or some intermediary official charged with making the common roll or preliminary roll available to the polling officials.
59. The second ground is that, the allegation at paragraph (f) “that failure to use common roll or preliminary rolls at the polling venues” lacked further facts to show how the result was affected. This is because there are no number of votes affected pleaded and the lack of such pleading renders the allegation as being speculative.
60. The petitioner relied on the case of Ben Semri v. Duangha (2013) N4989 and submitted that the due to the failure of the second respondent to provide common roll, the information in relation to the number of votes (voters) in the common roll was not available to him but the second respondent.
61. It is acknowledged that the gist of the allegation is that no common roll was produced or made available to verify the number of electors prior to polling. But there are no figures to demonstrate how the result of the election was affected by the alleged error or omission in failing to provide the common roll for the electorate. The information in relation to the number of votes affected is obtained from the number of ballot-papers assigned to a polling location and should be pleaded to show how the result was affected. Say for example, if the petitioner was able to give the number of ballot-papers affected as a result of hijacking of ballot-box at each polling location above, the same sort of information should be available to him to plead in support of this allegation. As a material fact in relation to figures to show how the result was affected is lacking or missing, this allegation is defective and incompetent. It is struck out.
62. The next allegation is pleaded as follows:
63. The first respondent’s objection is based on the ground that the allegation is confusing and if it has not been pleaded how the error(s) affected the result of the election. The second respondent objected on the ground that the facts are lacking in that the identity of the counting officials and result of the election have of been pleaded.
64. There is no contest that the date and location of the alleged error(s) or omission(s) have been stated, they being 13th and 16th July 2017 and the counting centre at Wabag Primary School. The allegations range from failure to provide adequate opportunity to scrutineers of candidates to observe the opening, checking and distribution of ballot-papers to refusal to take into account grievances of scrutineers by the Returning Officer Mr. Besawe to allow scrutineers to observe counting. The allegation at paragraph (d) gives an example of a case were the scrutineer of the petitioner identified as Noel Sandal observed a counting official identified as George Maki placing a primary ballot-papers of Jonathan Praia in the tray of the first respondent and at paragraph (e), the identified scrutineers of candidates were rejected by the Returning Officer from entering the counting room.
65. The above allegations of fact show that the Returning Officer and counting officials failed in the discharge of their duties to ensure that counting was transparent and as a result, the scrutiny process was compromised. And while it is acknowledged that the number of votes affected by the alleged errors or omissions has not been pleaded, where it forms an integral part of the allegation that scrutineers were denied opportunity to observe how counting was conducted, it would be difficult to expect them to record the number of votes misplaced or misallocated by the counting officials and plead them in the petition. This allegation is competent and will progress to trial.
66. The next allegation is as follows:
67. First, the first respondent objected on the ground that the allegation is too general and vague. This is because it was not pleaded if security personnel were required at each polling location, the type of security arrangement made for such security personnel to be present and if the failure to provide security was on the part of the second respondent. Secondly, it has not been pleaded how the result was affected.
68. In the case of Reipa v. Bao [1999] PNGLR 232 it was held by the Supreme Court that the Electoral Commission has an obligation to provide “full security” to ensure the integrity of every citizen’s vote. In this case, while it is not pleaded that it is the responsibility of the Electoral Commission to provide security at polling locations, this allegation forms part of the allegations of illegal practices at polling and the polling locations have been identified. It is alleged that ballot-boxes were hijacked at these polling locations where no security was provided. Apart from the statement at paragraph (d) that a total of 9,548 ballot-papers were illegally removed, this allegation can be considered with those allegations to determine whether the error or omission (failure to provide security) did affect the result of the election under Section 218 of the Organic Law. These grounds of objections are dismissed. This allegation is competent and will progress to trial.
69. The further allegation is as follows:
70. The objection is based in the failure by the petitioner to plead the matters set out in Section 153A of the Organic Law to constitute an error or omission by the Returning Officer. He relied on the case of Pila Niningi v. Electoral Commission (2013) N5322 as authority for this proposition. Secondly, it has not been shown if the alleged error or omission did affect the election.
71. There is no contest that the date, place and identity of the electoral official have been pleaded, they being 13th, 15th and 17th July 2017 at the counting centre and the Returning Officer Mr. Besawe. It is here that the allegation must be distinguished from the allegation which the defence put forth. The gist of the allegation is that the ballot-boxes from the stated polling locations at paragraph (a) above should not have been admitted to scrutiny because Mr. Besawe was aware that they were tampered with. The alleged tampering was a result of the earlier allegations of illegal practices where the ballot-boxes were hijacked by supporters of other known candidates at the identified polling locations. Yet he allowed them to be admitted to scrutiny.
72. Thus, the question whether he was aware of the alleged tampering of the ballot-boxes before they were brought to the counting centre and counted is one for the petitioner to prove by way of evidence. Such evidence, if called, would preclude evidence of any objection under Section 153A of the Organic Law because no such allegation has been made here. Finally, the number of votes affected can be deduced from the number of votes pleaded in the allegations of illegal practices above, such that it is sufficient that such errors or omissions did affect the result of the election. In other words, the allegation forms part of the allegations of illegal practices pleaded above. As the ballot-boxes from Rugutengesa Ward 28 and Imapiak Ward 11 were excluded, they will not be considered and the rest of the allegations will be allowed to progress to trial for the Court to consider whether the Returning Officer made an error in admitting these ballot-boxes to scrutiny. These grounds of objections are dismissed. This allegation is competent and will progress to trial.
73. The third last allegation is as follows:
11) Apprehension of bias by the Returning Officer, Ben Besawe
| Poling Venue | Ballot Box No. | Serial No. | Tag No. | Ballot Papers |
| Tarapis | EC-011257 | 0837397-0838015 | 026495-026496 | 708 |
| Gini No. 1 | EC-011230 | 0824497-0825678 | 026423-026424 | 1182 |
| Titip | EC-011297 | 0863450-0864677 | 026330-026329 | 1227 |
| Kanean | EC-011280 | 0864678-0865681 | 026325-026326 | 1003 |
| Kindule | EC-011281 | 0865682-0866667 | 026333-026334 | 985 |
| Laguni | EC-011282 | 0866668-0867602 | 026337-026338 | 934 |
| Kitale | EC-011288 | 0872671-0873704 | 026361-026362 | 1033 |
| | Total | 7071 | ||
74. Notwithstanding the defence objection that the allegation is vague and confusing, it is a further allegation or continuation of the previous one in that, there are sufficient facts pleaded to constitute errors or omissions where first, at count 52, the Returning Officer Mr. Besawe refused to admit 21 ballot-boxes to scrutiny without giving any reasons for his decision, secondly, the decision was contrary to the direction of the Electoral Commissioner to have them counted and thirdly, to proceed with counting of the ballot-papers despite suspension of counting and further, counting proceeded without the presence and observance of counting by candidates’ scrutineers. The further errors or omissions are that identified counting officials namely Panao Muniakali, Nanas Kamakan, John Kawi, Smith Lyambin and other candidates’ scrutineers namely Michael Phillipo, Jeffrey Waika, Joshua Larta, Billy Taku Yapaken and Benjamin Masol tore and chewed ballot-papers poured on the table and kicked and threw the ballot-box for Gini No. 1 on the floor. As a result, ballot-papers were scattered on the floor. Despite this no remedial action was taken. Then Mr. Besawe refused to admit 7 ballot-boxes to scrutiny where a total of 7,071 votes were excluded from being counted. These facts reveal that there are serious questions raised in relation to the validity of the scrutiny process and must be considered when it is further alleged that 7,071 was the number of ballot-papers affected by these errors or omissions. For these reasons, it is not difficult to see in a case where the winning margin was 3,004 votes how the result of the election was affected under Section 218 of the Organic Law. The defence objection is dismissed. These allegations are competent and will progress to trial.
75. The second last allegation is set out as follows:
12) Errors and Omissions in counting process
76. The statement of facts disclose a case where the Returning Officer failed to allow quality check or purity check before and after elimination round of each candidate, elimination no. 13 to no. 24 was conducted without the knowledge and presence of candidates’ scrutineers even though counting was supposed to be suspended for the Kandep Open electorate and displaces the defence objection that the allegation is confusing or raising matters of evidence. The manner in which the counting was conducted resulted in a number of discrepancies, they being, at elimination no. 29, a total of 7,948 votes were distributed to the petitioner and first respondent which included exhausted ballot-papers and secondly, less number of exhausted ballot-papers (7) recorded at elimination no. 21 and a high number (210) recorded at elimination no. 24. Despite scrutineers’ queries, no remedial action was taken by the Returning Officer. These allegations are competent and will progress to trial. The grounds of objection are dismissed.
77. The final allegation is as follows:
13) Failure to return writ within time
a)The Governor General acting on the advice of the Second Respondent initially fixed the date for the return of Writs for all electorate in PNG National Election including Kandep Open Electorate for 24 July 2017.
78. The respondent objected to the allegation on the ground that it does not show how the alleged error or omission affected the result
of the election. They submitted that this is because Section 218 of the Organic Law states that an election shall not be avoided on account of a delay in the declaration of nomination, poll or return of writ.
79. On the other hand, relying on the Supreme Court case of Jimson Sauk v. Don Polye (2004) SC769 the petitioner submitted that the petition “does adequately plead the effect of the late return of writ”, it being, “the election was deemed to have failed”. By way of relief, he has sought a “declaration that the election for Kandep Open Electorate is deemed to have failed pursuant to section 97(2) of the Organic
Law on National and Local Level Government Elections”.
80. It is noted that the petitioner relies on this allegation as a separate or stand-alone ground to void the election or have the election declared as having failed based on the failure of the second respondent to return the writ within time fixed by the Governor General on 24 July 2017. The respondents’ submission is upheld because if the petitioner is alleging that the failure to return the writ within time constituted an error or omission, he is required to plead by showing that the error or omission did affect the result of the election. Such would require a statement of fact of the number of votes affected by the error or omission and how they affected the final result of the election. In this case, there is no pleading to show in figure terms how the alleged delay in the return of the writ for Kandep Open electorate affected the result of the election. It lacked the material facts in terms of number of votes affected by the delay in the return of the writ and is struck out as being incompetent.
63. With regard to the Supreme Court decision in Sauk v. Polye (supra), it is noted that it was held that a failure to return a writ within time or delay in its return raised legal issues as to the effect of or otherwise of Sections 218, 97 and 176 of the Organic Law. But that case can be distinguished from this case because the ground on lack of facts in relation to number of votes affected the result of the election was not raised. This is because as it is a stand-alone ground, the test in Section 218 of the Organic Law is that the petitioner must plead and show the number of votes affected by the delay and in turn affected the final result of the election. In the present case, it was a ground challenging the competency of this allegation. This allegation is incompetent and struck out.
Order
82. The orders are:
________________________________________________________________
Fairfax Legal Lawyers : Lawyers for Petitioner
Simpsons Lawyers : Lawyers for First Respondent
Kawat Lawyers : Lawyers for Second Respondent
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