Parkop v Juffa [2023] PGNC 116; N10153 (9 March 2023)

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IN THE MATTER OF A DISPUTED RETURN FOR THE
NORTHERN PROVINCIAL ELECTORATE

ELECTIONS – petitions – objections to competency of petition – Organic Law on National and Local-level Government Elections, s 208 (requisites of petition) – s 208(a): whether petition adequately sets out facts relied on to invalidate election – s 217 (real justice to be observed) – whether s 217 is to be applied when determining objections to competency of petition – whether a ground of a petition needs to observe distinction between illegal practices under Organic Law, s 215 and errors or omissions of electoral officers under Organic Law, s 218.

The respondents to an election petition (the successful candidate was first respondent and the Electoral Commission second respondent) objected to competency of the petition, which consisted of ten grounds of challenge. Four grounds were based on undue influence or bribery by or with the knowledge and authority of the first respondent. Six grounds alleged errors or omissions by officers of the Electoral Commission in the counting of votes, which affected the result of the election. The respondents argued that each of the undue influence and bribery grounds failed to comply with s 208(a) of the Organic Law on National and Local-level Government Elections in that it: (i) failed to plead the facts constituting the elements of the offences of undue influence and bribery under ss 102 and 103 of the Criminal Code; (ii) failed to give sufficient details of the alleged facts relied on; and (iii) failed to plead the relevant provisions of the Organic Law. The respondents argued that each of the errors and omissions grounds failed to comply with s 208(a) of the Organic Law in that it: (i) failed to plead facts and figures to demonstrate how, as required by s 218(1) of the Organic Law, the result of the election was affected by the alleged errors and omissions; (ii) failed to plead the elements of s 218(1) of the Organic Law; and (iii) introduced a vague allegation of commission of illegal practices by electoral officers, confusing it with the allegation of errors or omissions and ignoring the distinction between illegal practices under s 215 and errors or omissions under s 218 of the Organic Law. The respondents claimed the entire petition was incompetent and should be dismissed. The petitioner opposed both objections to competency and argued preliminary points that both objections were themselves incompetent as each failed to comply with the requirements of the Election Petition Rules 2017. As to the merits of the objections, the petitioner argued that: (i) the Court should look at the whole process of the election and not turn a blind eye to irregularities that breach the quality and purity of the election process; (ii) a petition that raises serious complaints, should not be dismissed on technical grounds; (iii) the Court must invoke s 217 (real justice to be observed) of the Organic Law and apply it to determination of the objections.

D L Dotaona, for the Petitioner
A W Jerewai, for the First Respondent
N Tame, for the Second Respondent

1. CANNINGS J: This is a ruling on objections to competency of an election petition. The petition was filed by unsuccessful candidate Jean Eparo Parkop (the petitioner) disputing the election of first respondent Gary Juffa as member for Northern Provincial in the 2022 general election. The petition contains ten grounds of challenge. Four grounds are based on undue influence or bribery by or with the knowledge and authority of the first respondent. Six grounds allege errors or omissions by officers of the Electoral Commission (the second respondent) in the counting of votes, which affected the result of the election. The petitioner seeks amongst other things a declaration that the election of the first respondent is void and an order for a by-election.

2. The respondents argue that each of the undue influence and bribery grounds fails to comply with s 208(a) of the Organic Law on National and Local-level Government Elections in that it:

3. The respondents argue that each of the errors and omissions grounds fails to comply with s 208(a) of the Organic Law in that it:

4. The respondents claim that the entire petition is incompetent and should be dismissed.

5. The petitioner opposes both objections to competency and argues preliminary points that both objections to competency are themselves incompetent as each failed to comply with the requirements of the Election Petition Rules 2017.

7. The petitioner raises three points regarding the first respondent’s notice of objection to competency, filed on 3 October 2022:

8. I reject point (i) as the correct Rules are relied on. The Rules could also have been described in the way contended for by the petitioner. There is no real difference in the two ways of describing the Rules. The Rules could have been described simply as the Election Petition Rules 2017. All those ways are correct.

9. I reject point (ii) as it is not a requirement of the Election Petition Rules to set out the jurisdictional basis under the Organic Law for the objections.

10. I reject point (iii) as rule 12(c) simply requires that a respondent “file and serve all affidavits in support of the objection”, but does not actually require any affidavit to be filed in support of the objection. In most cases an affidavit will be unnecessary as the objection will be to the petition itself and the alleged defects in the petition that are apparent on the face of the petition.

11. None of the preliminary points regarding the first respondent’s objection to competency have merit. The notice of objection is in a form substantially compliant with rule 12 and form 4 of the Election Petition Rules. Even if the notice was non-compliant with the Rules, it may well be saved under rule 22 (relief from the Rules), which states:

12. The petitioner’s objection to competency of the first respondent’s objection to competency of the petition is therefore refused.

13. The petitioner raises three points regarding the second respondent’s notice of objection to competency, filed on 4 October 2022:

14. I reject point (i) as it is not a requirement of the Rules that rule 12 be referred to as the jurisdictional basis of the objection.

15. I reject point (ii) for the same reasons I rejected point (iii) regarding the first respondent’s notice of objection to competency.

16. I reject point (iii) as the non-compliance with the form is trivial in nature, not material, and the notice of objection is substantially compliant with the Rules.

17. The petitioner’s objection to competency of the second respondent’s objection to competency of the petition is therefore refused.

18. The grounds of objection to the petition in the respondents’ notices of objection overlap to a large extent, so I will deal with both objections together.

19. I will set out each ground of the petition, and then in relation to each ground, address and determine the grounds of objection to it and decide whether, if the objection is sustained, the ground of the petition is struck out.

Undue influence committed on 7 July 2022 by the First Respondent with the intention to induce an elector to vote or refrain from voting at an election contrary to section 102(a) of the Criminal Code.

(1)

On Thursday, 7 July 2022 at 11 am the First Respondent went to Igora Community Centre at Igora oil palm block, Ward 3, Higaturu Local-level Government, Sohe electorate and drove in a white 5 door Toyota Landcruiser with red stripes and he was accompanied by a white 10 seater Toyota Landcruiser.

(2)

Eric Ihove and Lesley Ombi both electors and supporters of another candidate Romilly Kila Pat and others were at the community centre. They asked the First Respondent why he was there and he responded and said he was doing his usual rounds. The group shouted at the First Respondent and told him that he was not welcome there. Out of frustration the First Respondent fired two (2) shots out of his pistol into the air as he drove out in his vehicle. The First Respondent scraped his vehicles tyres on the road before driving out. The shots were fired with the intention to intimidate, threaten or create fear in the minds of Eric Ihove and Lesley Ombi and others present to induce them to vote or refrain from voting at the election for the Northern Provincial seat.

21. In summary, this ground of the petition alleges that the first respondent, upon being frustrated by two electors who were supporters of a rival candidate, fired two shots into the air from his pistol with the intention of inducing them to vote or refrain from voting at the election, and that by doing so he committed the offence of undue influence under s 102 of the Criminal Code.

22. If it is proven that the offence of undue influence was committed by the first respondent, his election will be declared void under s 215(1) of the Organic Law.

(1) If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.

(2) A finding by the National Court under Subsection (1) does not bar or prejudice a prosecution for an illegal practice.

(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.

24. The respondents object to this ground of the petition on the ground that it does not comply with s 208(a) of the Organic Law.

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

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

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

26. There are some general principles that apply to this sort of objection to a ground of a petition:

27. Applying those principles to this ground of the petition (the first of the four undue influence and bribery grounds) I find that, though the alleged facts are stated with sufficient particularity in terms of date and time and place of the alleged offence, I am not satisfied that those facts, if proven, would amount to commission of an offence of undue influence under s 102 of the Criminal Code.

(a) uses 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–

(ii) on account of his having voted or refrained from voting at an election; or

(b) by force or fraud prevents or obstructs the free exercise of the franchise by an elector, or by any such means compels or induces an elector to vote or refrain from voting at an election,

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.

29. While the firing by a candidate of two shots into the air from a pistol could reasonably be regarded as proof of the opening element of s 102(a) of the Criminal Code, I cannot see any reasonable prospect of it being proven at trial that the shots were fired to induce the two electors to vote or refrain from voting at the election, as required by s 102(a)(i).

30. As to the alternative offence under s 102(b) I cannot see any reasonable prospect of it being proven at trial that, by firing two shots from his pistol, the first respondent was by force or fraud preventing or obstructing the free exercise of franchise by electors or compelling or inducing the electors to vote or refrain from voting at the election.

31. The facts as alleged, if proven, might amount to commission of some other offence under the Criminal Code or an offence under the Summary Offences Act or the Firearms Act, but it is the alleged commission of the offence of undue influence under s 102 of the Criminal Code that is the issue here. I am not satisfied that the alleged facts, if proven, would amount to commission of that offence.

32. I am therefore not satisfied that this ground of the petition meets the requirements of s 208(a) of the Organic Law. The respondents’ objection to it is sustained. This ground of the petition is struck out.

Bribery committed on 5 July 2022 and 8 July 2022 by an agent and servant of the First Respondent with the knowledge and authority of the First Respondent with the intention to cause or induce an elector to vote for the First Respondent contrary to section 103(a) and (d) of the Criminal Code.

(1)	On 5 July 2022 at 11 am at Double-Cross compound Vali Philemon being a polling official and an agent of the First Respondent and acting with the First Respondent’s knowledge and authority gave K50 to an elector named Julius Hiredidi and instructed Julius Hiredidi to vote Box No. 14- Gary Juffa in the election for the Northern Provincial seat.
(2)	On 8 July 2022 at Monge Polling station Vali Philemon being an agent of the First Respondent and acting with the First Respondent’s knowledge and authority gave soft drinks and food to an elector named Julius Hiredidi and instructed Julius Hiredidi to vote Box No. 14- Gary Juffa in the election for the Northern Provincial seat.
(3)	On 11 July 2022 at Toputuru Huvivi polling station Vali Philemon being an agent of the First Respondent and acting with the First Respondent’s knowledge and authority gave K100 to an elector named Julius Hiredidi after polling was completed. The K100 was also part of the cash bribe to Julius Hiredidi.

34. In summary, this ground of the petition alleges that Vali Philemon, an agent of the first respondent, gave an elector, Julius Hiredidi, K50.00 cash on 5 July 2022, soft drinks and food on 8 July 2022 and K100.00 cash on 11 July 2022, instructing him to vote for the first respondent, thereby committing the offence of bribery under s 103(a) and (d) of the Criminal Code, and that Vali Philemon committed that offence with the knowledge and authority of the first respondent.

35. The respondents assert that this ground of the petition fails to meet the requirements of s 208(a) of the Organic Law as it (i) fails to plead the facts constituting the elements of an offence of bribery under s 103 of the Criminal Code; (ii) fails to give sufficient details of the alleged facts relied on; and (iii) fails to plead the relevant provisions of the Organic Law.

36. As to objection (i) – that the petition fails to plead facts that constitutes the elements of an offence – it is necessary to set out the whole of s 103 (bribery) of the Criminal Code. It states:

(a) gives, confers or procures, or promises or offers to give or confer, or to procure or attempt to procure, to, on, or for, any person any property or benefit of any kind—

(i) on account of anything done or omitted to be done, or to be done or omitted to be done, by an elector at an election in the capacity of an elector; or

(ii) on account of any person acting or joining in a procession during an election; or

(iii) 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; or

(b) being an elector, asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person on account of anything done or omitted to be done, or to be done or omitted to be done, by him at an election in the capacity of an elector; or

(c) asks, receives or obtains, or agrees or attempts to receive or obtain, any property or benefit for himself or any other person, on account of a promise made by him or any other person to endeavour to procure the return of any person at an election, or the vote of any person at an election; or

(d) advances or pays any money to or to the use of any other person with the intent that the money will be applied for any of the purposes referred to in Paragraph (a), (b) or (c) or in discharge or repayment of money wholly or in part applied for any such purpose; or

(e) corruptly transfers or pays any property or money to any person for the purpose of enabling that person to be registered as an elector, and so influencing the vote of that person at a future election; or

(f) is privy to the transfer or payment referred to in Paragraph (e) that is made for his benefit; or

(g) being a candidate at an election, convenes or holds a meeting of electors or of his committee in a house licensed for the sale of fermented or spirituous liquors,

Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.

37. This ground of the petition alleges that bribery offences were committed under s 103(a) and (d) of the Criminal Code. It could have been more specific than that, as each of s 103(a) and (d) creates a multitude of variants of the offence of bribery. However, I consider that sufficient detail has been provided.

38. As to s 103(a), the most relevant variant of the offences created by that provision appears to be s 103(a)(iii).

39. As explained in Isoaimo v Aihi [2012] 2 PNGLR 337 and Elemi v Pala (2023) N10134, the elements of an offence under s 103(a)(iii) are that the person alleged to have committed the offence:

40. The elements of an offence under s 103(d) are that the person alleged to have committed the offence:

41. I am satisfied that this ground of the petition pleads facts constituting the elements of an offence of bribery under both s 103(a)(iii) and (d) of the Criminal Code. I am further satisfied that if the alleged facts are proven at trial, those facts may amount to commission of an offence of bribery under s 103 of the Criminal Code.

42. As to objection (ii) – that the petition fails to give sufficient details of the alleged facts relied on – I reject it. This ground of the petition gives sufficient detail in terms of dates and places and who the alleged briber was and who the person allegedly bribed was. Further details are unnecessary. To require them would be to require evidence.

43. As to objection (iii) – that the petition fails to plead the relevant provisions of the Organic Law – this is a valid point. This ground of the petition ought to have pleaded (a) that Vali Philemon committed bribery with the knowledge and authority of the first respondent and (b) that therefore the election of the first respondent should be declared void under s 215(3)(a) of the Organic Law; (a) is pleaded, but (b) is not. Section 215 is only pleaded in the part of the petition containing the grounds based on errors and omissions of electoral officials. It should have been pleaded in relation to each of the four grounds alleging undue influence or bribery, but it was not.

44. Is this omission fatal? At this point it is necessary to consider s 217 (real justice to be observed) of the Organic Law, which states:

The National Court shall be guided by the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.

45. The obligation of the Court to be guided by the substantial merits and good conscience of an election petition case without regard to legal forms and technicalities applies from the beginning of an election petition case (including during hearing of objections to competency), throughout the trial, and right to the end. That has not always been accepted to be the law, but definitely is now, due to the recent five-Judge decision of the Supreme Court in Hagahuno v Tuke (2020) SC2018. In Hagahuno the Court endorsed the line of authority saying that the National Court should stop being over-technical and nit-picking over the way in which an election petition is drafted: Sauk v Polye [2004] 2 PNGLR 241, Saonu v Dadae (2004) SC763, Kikala v Electoral Commission (2013) SC1295, Kamma v Itanu (2007) N3246, Yama v Yagama (2012) N4928,

46. What this means is that in determining the significance of the failure to expressly mention s 215 in this ground of the petition, I must:

47. Applying those principles arising from s 217 of the Organic Law to the respondents’ objections, I consider that the failure to expressly mention s 215 in this ground of the petition is not fatal. The elements of s 215(3)(a) are present and that is the most important thing. I reject objection (iii) to this ground of the petition.

48. I am therefore not satisfied that this ground of the petition fails to meet the requirements of s 208(a) of the Organic Law. The respondents’ objection to it is refused. This ground of the petition will proceed to trial.

Bribery committed on 8 July 2022 by the agents and servants of the First Respondent with the knowledge and authority of the First Respondent with the intention to cause or induce electors to vote for the First Respondent contrary to section 103(d) of the Criminal Code.

(1)	On Friday, 8 July 2022 at 11 am the Oro Provincial Administrator Trevor Magei who is the Chairman of the Oro Provincial Elections Steering Committee gave a brown envelope of cash to Councillor Allie Pukari a Councillor of a Popondetta Urban Local-level Government ward who gave the cash to a number of boys in a vehicle to buy beer and drugs. Oro Province Administrator Trevor Magei and Councillor Allie Pukari were agents of the First Respondent, and acted with the knowledge and authority of the First Respondent.
(2)	On Friday, 8 July 2022 at 2 pm at Sanananda village, located in the Oro Bay Local-level Government in the Northern Provincial seat Councillor Allie Pukari being an agent of the First Respondent and acting with the First Respondent’s knowledge and authority gave K50 cash to John Kenon an elector in the Northern Provincial seat and Councillor Pukari specifically instructed John Kenon to vote Box No. 14- Gary Juffa in the election for the Northern Provincial seat.
(3)	When Councillor Allie Pukari gave the K50 cash to John Kenon an elector to induce him to vote for the First Respondent he also gave beer, drugs (marijuana) and K50 cash each to other youths and community members who were there for the polling with the intention of inducing them to vote for the First Respondent.
(4)	The First Respondent appointed Trevor Magei as the Oro Provincial Administrator and Mr Magei has played a key role in the election campaign of the First Respondent in the 2022 National General Election. Provincial Administrator Trevor Magei and Councillor Allie Pukari are close supporters and associates of the First Respondent.

50. In summary, this ground of the petition alleges that Councillor Allie Pukari, an agent of the first respondent, gave an elector, John Kenon, K50.00 cash on 8 July 2022, instructing him to vote for the first respondent, thereby committing the offence of bribery under s 103(d) of the Criminal Code, and that Councillor Allie Pukari committed that offence with the knowledge and authority of the first respondent.

51. The respondents assert that this ground of the petition fails to meet the requirements of s 208(a) of the Organic Law as it: (i) fails to plead the facts constituting the elements of an offence of bribery under s 103 of the Criminal Code; (ii) fails to give sufficient details of the alleged facts relied on; and (iii) fails to plead the relevant provisions of the Organic Law.

52. As to objection (i), I am satisfied that this ground of the petition pleads facts constituting the elements of an offence of bribery under s 103(d) of the Criminal Code. I am further satisfied that if the alleged facts are proven at trial, those facts may amount to commission of an offence of bribery under s 103 of the Criminal Code.

53. As to objection (ii) – that the petition fails to give sufficient details of the alleged facts relied on – I reject it. This ground of the petition gives sufficient detail in terms of dates and places and who the alleged briber was and who the person allegedly bribed was. Further details are unnecessary. To require them would be to require evidence.

54. As to objection (iii) – that the petition fails to plead the relevant provisions of the Organic Law – this is, as I explained in ground 2 of the undue influence or bribery grounds of the petition – a valid point. This ground of the petition ought to have pleaded that the election of the first respondent should be declared void under s 215(3)(a) of the Organic Law. However, the omission is not fatal. The elements of s 215(3)(a) are present and that is the most important thing. I reject objection (iii) to this ground of the petition.

55. I am therefore not satisfied that this ground of the petition fails to meet the requirements of s 208(a) of the Organic Law. The respondents’ objection to it is refused. This ground of the petition will proceed to trial.

Bribery committed on 8 July 2022 by the agents and servants of the First Respondent with the knowledge and authority of the First Respondent with the intention to cause or induce an elector to vote for the First Respondent contrary to section 103(d) of the Criminal Code.

(1)	On Thursday, 8 July 2022 at about 11 am on the way to Duve village, Ward 8, Higaturu Local-level Government at the side of the Embara river the First Respondent’s agent named Robert Tikai acting with the knowledge and authority of the First Respondent gave money to Teddy Kanari a scrutineer of the First Respondent and an agent acting with the knowledge and authority of the First Respondent who gave K100 cash to an elector named Gilbert Hirima and he said in Tok Pisin: Nau bai presiding officer bai makim ballot paper blo Box 14 na bai umi go lo Duve which translated into English is: Now the presiding officer will mark the ballot paper belonging to Box 14 and we will go to Duve. Robert Tikai is the provincial Chairman of People’s Movement of Change the political party of the First Respondent and a close associate of the First Response.
(2)	On 8 July 2022 at about 11 am the elector Gilbert Hirima observed the presiding officer for team 7 named Cecil Benunu take out extra ballot papers and mark them for Box 14 – Gary Juffa and put them into the ballot box. There were no scrutineers of any candidates present.
(3)	From the side of the Embara river the elector Gilbert Hirima followed the polling officials and at Duve polling station Teddy Kanari an agent of the First Respondent acting with the First Respondent’s knowledge and authority gave Gilbert Hirima K100 cash. Gilbert Hirima received K200 cash from Teddy Kanari that day as bribery money.
(4)	Also on 8 July 2022 the polling team left for Sasembata station and Gilbert Hirima followed them to Sasembata station and while following them he saw a maroon 5 door Toyota Landcruiser with the First Respondent’s boys meet up with the polling officials. The maroon 5 door was driven by Robert Tikai and he was with other boys of the First Respondent.
(5)	At the Sesambata polling station on 8 July 2022 the First Respondent’s boys gave money to the village people and controlled the polling station and told the people to vote for Box 14 Gary Juffa.

57. In summary, this ground of the petition alleges that Robert Tikai and Teddy Kanari, agents of the first respondent, gave an elector, Gilbert Hirima, two amounts of K100.00 cash (a total of K200.00) on 8 July 2022, as bribery money to ensure that a presiding officer was able to mark ballot papers for the first respondent, thereby committing the offence of bribery under s 103(d) of the Criminal Code, and that Robert Tikai and Teddy Kanari committed that offence with the knowledge and authority of the first respondent.

58. The respondents assert that this ground of the petition fails to meet the requirements of s 208(a) of the Organic Law as it: (i) fails to plead the facts constituting the elements of an offence of bribery under s 103 of the Criminal Code; (ii) fails to give sufficient details of the alleged facts relied on; and (iii) fails to plead the relevant provisions of the Organic Law.

59. As to objection (i), I am satisfied that this ground of the petition pleads facts constituting the elements of an offence of bribery under s 103(d) of the Criminal Code. I am further satisfied that if the alleged facts are proven at trial, those facts may amount to commission of an offence of bribery under s 103 of the Criminal Code.

60. As to objection (ii) – that the petition fails to give sufficient details of the alleged facts relied on – I reject it. This ground of the petition gives sufficient detail in terms of dates and places and who the alleged briber was and who the person allegedly bribed was. Further details are unnecessary. To require them would be to require evidence.

61. As to objection (iii), – that the petition fails to plead the relevant provisions of the Organic Law – this is, as I explained in ground 2 of the undue influence or bribery grounds of the petition – a valid point. This ground of the petition ought to have pleaded that the election of the first respondent should be declared void under s 215(3)(a) of the Organic Law. However, the omission is not fatal. The elements of s 215(3)(a) are present and that is the most important thing. I reject objection (iii) to this ground of the petition.

62. I am therefore not satisfied that this ground of the petition fails to meet the requirements of s 208(a) of the Organic Law. The respondents’ objection to it is refused. This ground of the petition will proceed to trial.

SUMMARY OF DETERMINATION OF OBJECTIONS TO THE UNDUE INFLUENCE OR BRIBERY GROUNDS OF THE PETITION

63. The objection to ground 1 has been sustained and ground 1 is struck out. The objections to grounds 2, 3 and 4 have failed, and those grounds of the petition will proceed to trial.

64. I now consider the objections to the six errors and omissions grounds of the petition.

GROUND 1 OF THE ERRORS AND OMISSIONS GROUNDS OF THE PETITION: INTIMIDATION BY ELECTORAL OFFICERS

65. This ground of the petition is under the heading “ERRORS AND OMISSIONS OF ELECTORAL OFFICIALS WHICH AFFECTED THE RESULT OF THE PETITION” and is preceded by this statement:

The Petitioner claims that the errors and omissions committed by the electoral officials set out in paragraphs 1 to 6 below are all illegal practices that affected the result of the Northern Provincial seat election as set out in section 215 of the Organic Law, and that it is just that the First Respondent should be declared not to be duly elected or that the election should be declared void.

(a)	Fred Gumaba a scrutineer for Mr Steven Puap a candidate for the Popondetta Open seat on Wednesday, 20 July 2022 at 8 pm was at the counting venue when he asked the Assistant Returning Officer Mr Joe Kadi to confirm how many presiding officers had taken part in getting the votes into the box so he would know how many signatures to look for at the back of each ballot paper as counting began. However, Mr Joe Kadi looked angry and could not answer his questions. Instead Mr Kadi told all the scrutineers that Fred Gumaba is the only scrutineer who will not ask any more questions.
(b)	On 3 August 2022 at 1.29 am Barbara Kova a scrutineer for the Petitioner found more than 24 live ballot papers in the exhausted ballot paper box so she asked the presiding officers Apollas Robinson and Muri Luba to suspend counting and check. Apollas Robinson refused the request by Barbara Kova. Apollas Robinson said that she had no right to re-check the exhausted ballot papers. He told her to go to the Petitioner and tell her to take the matter to Court and the lawyer has the right to re-check the exhausted papers and counting continued.
(c)	On 4 August 2022 scrutineer Mary Wakei was at the counting venue when the primary counting of box 1 to box 10 commenced. She saw the Kokoda Assistant Returning Officer Mr Albert Bogembo who told her not to take the old tally because it did not balance so they would take the primary counts to balance it. He told her they would balance the primary count votes at night but in the morning the next day they did not balance it at all. So all scrutineers stopped the counting but Mr Bogembo said nobody will stop the counting and they continued counting.

67. In summary, this ground of the petition alleges that various returning officers unreasonably refused requests by various scrutineers for various candidates on various dates for details of presiding officers’ signatures, for rechecking of exhausted ballot papers and for rechecking of the primary count.

68. The respondents argue that this ground of the petition fails to comply with s 208(a) of the Organic Law in that it: (i) fails to plead facts and figures to demonstrate how, as required by s 218(1) of the Organic Law, the result of the election was affected by the alleged errors and omissions; (ii) fails to plead the elements of s 218(1) of the Organic Law; and (iii) introduces a vague allegation of commission of illegal practices by electoral officers and confuses it with the allegation of errors or omissions, ignoring the distinction between illegal practices under s 215 and errors or omissions under s 218 of the Organic Law.

69. As to objection (i) – that this ground of the petition fails to plead facts and figures to demonstrate how the result of the election was affected by the alleged errors and omissions – this is part of the requirement under s 208(a) to state sufficient facts, when an election is challenged on the ground of errors or omissions of electoral officials under s 218(1) of the Organic Law.

... an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error of, or an omission by, an officer which did not affect the result of the election.

71. Section 218(1) has two parts. First, the petition must allege that a delay in the declaration of nominations, the polling, declaration of the poll or return of the writ has occurred or there has been an absence or – as is alleged in this case – an error or an omission by an officer. Secondly the petition must allege that the delay, absence, error or omission has affected the result of the election. Injia J as he then was explained this in Beseoh v Bao (2003) N2348:

Section 218(1) has two parts. First, the delay, error or omission of electoral officers must be clearly pleaded and second, the petition must demonstrate clearly how that delay, error or omission did affect the result of the election. Mere pleading of the delay in the polling and errors or omissions will not suffice. Likewise, mere pleading that the result was affected will not suffice.

72. The Supreme Court in Amet v Yama [2010] 2 PNGLR 87 emphasised the importance of pleading both that the result of the election was affected and how it was affected.

73. I find that this ground of the petition fails to meet those requirements, in that:

74. As to objection (ii) – that this ground of the petition fails to plead the elements of s 218(1) of the Organic Law – this is a valid point and a proper objection, for the same reasons that objection (i) was sustained: the petition fails to pinpoint how the intimidatory conduct of the returning officers amounted to errors or omissions and it fails to demonstrate how that conduct, presuming that it did amount to errors or omissions, affected the result of the election. Indeed s 218 is not mentioned in this ground of the petition or anywhere else in the petition.

75. As to objection (iii) – that this ground of the petition introduces a vague allegation of commission of illegal practices by electoral officers and confuses it with the allegation of errors or omissions, ignoring the distinction between illegal practices under s 215 and errors or omissions under s 218 of the Organic Law – this is another valid point.

76. The allegation of commission of illegal practices by electoral officers is introduced in the preamble covering all six errors and omissions grounds of the petition. It is alleged that the errors or omissions committed by electoral officers are “illegal practices that affected the result of the Northern Provincial seat election as set out in s 215 of the Organic Law”.

77. The reference to illegal practices is confusing and problematic. The Supreme Court in Mune v Agiru (1998) SC590 held that an “illegal practice”, as the term is used in s 215 of the Organic Law, means a criminal offence of the sort created by s 178 (illegal practices) of the Organic Law or Division III.3 (corrupt and improper practices at elections) of the Criminal Code.

78. The preamble to the six errors and omissions grounds of the petition makes a bald allegation of commission of illegal practices by electoral officers, but does not specify which illegal practices are alleged to have been committed. This makes it impossible for the respondents to know what the case is that they need to prepare for.

79. The further, overriding problem with this ground of the petition is that it conflates the two categories of grounds on which a petition can be based:

This is what is known as ‘alternative pleading’, which is impermissible (Kopaol v Embel (2003) SC727, Potape v Undialu (2018) SC1680).

80. This ground of the petition fails to observe the distinction drawn by the Organic Law between illegal practices (ie criminal offences such as bribery and undue influence) by a candidate or another person with the candidate’s knowledge or authority (recognised in s 215 of the Organic Law) and errors or omissions of electoral officers (recognised in s 218 of the Organic Law).

81. The upshot is that this ground of the petition does not properly and adequately set out the facts relied on to invalidate the election or the return of the first respondent. It does not meet the requirements of s 208(a) of the Organic Law.

82. The defects in this ground of the petition are fundamental and extensive. It cannot be saved by invoking s 217 of the Organic Law. This is not being overly-technical and I do not consider that I am nit-picking (Agarobe v Peter & Electoral Commission (2023) N10141). The respondents’ objections are well founded. Ground 1 of the errors and omissions grounds is struck out.

GROUND 2 OF THE ERRORS AND OMISSIONS GROUNDS OF THE PETITION: UNAUTHORISED PERSONS WITH BALLOT PAPERS IN THE COUNTING CENTRE

83. This ground of the petition is under the heading “ERRORS AND OMISSIONS OF ELECTORAL OFFICIALS WHICH AFFECTED THE RESULT OF THE PETITION” and is preceded by this statement:

(a)

On 24 July 2022 at 10.20 pm when the Kokoda Count 7 was on Assistant Returning Officer Albert Bogembo was seen pulling out extra ballot papers from a table drawer located in the counting centre. When questioned by scrutineer of Phoebe Sangetari Charles Jasari why the ballot papers were not sealed and in the container he said: “Tell your candidates to take the matter to Court.”

(b)

At 4 am on Friday, 22 July 2022 Apollas Robinson a known supporter of the First Respondent and a counting official at the same time entered the counting centre and banged on the table and said: “Box 14 tok good morning lo yupela and handed over a bundle of foreign ballot papers to the counting officials who took the ballot papers and distributed them. All the counters were boys known to Apollas Robinson (Box 14 belonged to the First Respondent). The counters distributed the papers to the candidates’ boxes and the First Respondent collected 2,001 votes in that count.

85. In summary, this ground of the petition alleges that an assistant returning officer and a counting official who was a known supporter of the first respondent engaged in improper conduct on 24 and 22 July 2022 that resulted in the first respondent collecting 2,001 votes from Kokoda count 7.

86. I uphold the objections to this ground of the petition, for the same reasons I upheld the same objections to ground 1 of the errors and omissions grounds of the petition, that it: (i) fails to plead facts and figures to demonstrate how, as required by s 218(1) of the Organic Law, the result of the election was affected by the alleged errors and omissions; (ii) fails to plead the elements of s 218(1) of the Organic Law; and (iii) introduces a vague allegation of commission of illegal practices by electoral officers and confuses it with the allegation of errors or omissions, ignoring the distinction between illegal practices under s 215 and errors or omissions under s 218 of the Organic Law.

87. The upshot is that this ground of the petition does not properly and adequately set out the facts relied on to invalidate the election or the return of the first respondent. It does not meet the requirements of s 208(a) of the Organic Law.

88. The defects in this ground of the petition are fundamental and extensive. It cannot be saved by invoking s 217 of the Organic Law. Ground 2 of the errors and omissions grounds is struck out.

GROUND 3 OF THE ERRORS AND OMISSIONS GROUNDS OF THE PETITION: ALTERATION OF FIGURES ON THE TALLY BOARD/SCORE BOARD

89. This ground of the petition is under the heading “ERRORS AND OMISSIONS OF ELECTORAL OFFICIALS WHICH AFFECTED THE RESULT OF THE PETITION” and is preceded by this statement:

(a)

After 8^th Exclusion on 30 July 2022, Daisy Hombogani the Provincial Returning Officer stopped the elimination process and did the quality check again on the primary votes for the remaining 37 candidates for the Northern Provincial seat saying the figures did not balance. Daisy Hombogani as the Provincial Returning officer removed two (2) votes from the score board from Box 39 (Phoebe Sangetari), 12 votes from Box 43 (the Petitioner), 19 votes from Box 49 (Walter Enuma) and added 16 votes to Box 38 (Romily Kila Pat). When scrutineer Charles Jasari queried about doing quality checks on the figures for the eight (8) eliminated candidates, she ignored him and continued counting.

91. In summary, this ground of the petition alleges that the provincial returning officer, after the eighth exclusion on 30 July 2022, ignored a reasonable request from a scrutineer to do a quality check on the figures for the first eight eliminated candidates.

92. I uphold the objections to this ground of the petition, for the same reasons I upheld the same objections to ground 1 of the errors and omissions grounds of the petition, that it: (i) fails to plead facts and figures to demonstrate how, as required by s 218(1) of the Organic Law, the result of the election was affected by the alleged errors and omissions; (ii) fails to plead the elements of s 218(1) of the Organic Law; and (iii) introduces a vague allegation of commission of illegal practices by electoral officers and confuses it with the allegation of errors or omissions, ignoring the distinction between illegal practices under s 215 and errors or omissions under s 218 of the Organic Law.

93. The upshot is that this ground of the petition does not properly and adequately set out the facts relied on to invalidate the election or the return of the first respondent. It does not meet the requirements of s 208(a) of the Organic Law.

94. The defects in this ground of the petition are fundamental and extensive. It cannot be saved by invoking s 217 of the Organic Law. Ground 3 of the errors and omissions grounds is struck out.

GROUND 4 OF THE ERRORS AND OMISSIONS GROUNDS OF THE PETITION: TAMPERING WITH BALLOT PAPERS IN THE CONTAINER

95. This ground of the petition is under the heading “ERRORS AND OMISSIONS OF ELECTORAL OFFICIALS WHICH AFFECTED THE RESULT OF THE PETITION” and is preceded by this statement:

(a)

On 29 June 2022 at around 4.17 pm during the first quality check of the ballot papers stored at the Popondetta Police Station, police woman Roma Bogajiwai responsible for the keys to the container tried several times to unlock the container containing the ballot papers before polling. Scrutineer for Romilly Kila Pat Kelly Kairembora assisted her to open the padlock and noted the key and padlock did not match. So in the presence of the scrutineers, a police reservist cut the lock with a bolt cutter and brought the ballot papers out of the container. It was not known who was holding the correct key for the padlock.

The Petitioner claims that at that time before the ballot papers were issued for polling the safety and security of the ballot papers was already compromised.

97. In summary, this ground of the petition alleges that due to a suspicious mix-up with the padlock and key to a container containing the ballot papers, the safety and security of the ballot papers was compromised by 29 June 2022.

98. I uphold the objections to this ground of the petition, for the same reasons I upheld the same objections to ground 1 of the errors and omissions grounds of the petition, that it: (i) fails to plead facts and figures to demonstrate how, as required by s 218(1) of the Organic Law, the result of the election was affected by the alleged errors and omissions; (ii) fails to plead the elements of s 218(1) of the Organic Law; and (iii) introduces a vague allegation of commission of illegal practices by electoral officers and confuses it with the allegation of errors or omissions, ignoring the distinction between illegal practices under s 215 and errors or omissions under s 218 of the Organic Law.

99. The upshot is that this ground of the petition does not properly and adequately set out the facts relied on to invalidate the election or the return of the first respondent. It does not meet the requirements of s 208(a) of the Organic Law.

100. The defects in this ground of the petition are fundamental and extensive. It cannot be saved by invoking s 217 of the Organic Law. Ground 4 of the errors and omissions grounds is struck out.

GROUND 5 OF THE ERRORS AND OMISSIONS GROUNDS OF THE PETITION: LACK OF PROPER AUDIT AND VERIFICATION OF FIGURES DURING THE COUNTING

101. This ground of the petition is under the heading “ERRORS AND OMISSIONS OF ELECTORAL OFFICIALS WHICH AFFECTED THE RESULT OF THE PETITION” and is preceded by this statement:

103. This ground of the petition is a vague complaint that there was no proper verification and audit of the figures during the counting process.

104. I uphold the objections to this ground of the petition, for the same reasons I upheld the same objections to ground 1 of the errors and omissions grounds of the petition, that it: (i) fails to plead facts and figures to demonstrate how, as required by s 218(1) of the Organic Law, the result of the election was affected by the alleged errors and omissions; (ii) fails to plead the elements of s 218(1) of the Organic Law; and (iii) introduces a vague allegation of commission of illegal practices by electoral officers and confuses it with the allegation of errors or omissions, ignoring the distinction between illegal practices under s 215 and errors or omissions under s 218 of the Organic Law.

105. The upshot is that this ground of the petition does not properly and adequately set out the facts relied on to invalidate the election or the return of the first respondent. It does not meet the requirements of s 208(a) of the Organic Law.

106. The defects in this ground of the petition are fundamental and extensive. It cannot be saved by invoking s 217 of the Organic Law. Ground 5 of the errors and omissions grounds is struck out.

GROUND 6 OF THE ERRORS AND OMISSIONS GROUNDS OF THE PETITION: INSTANCES OF POLLING OFFICIALS TAKING BALLOT PAPERS AWAY DURING POLLING

107. This ground of the petition is under the heading “ERRORS AND OMISSIONS OF ELECTORAL OFFICIALS WHICH AFFECTED THE RESULT OF THE PETITION” and is preceded by this statement:

(a)

On Tuesday 5 July 2022, at Dobuduru village, Ward 12, Oro Bay Local-level Government, polling official Amelia Luba told scrutineers that there were 850 registered voters for Dobuduru ward 12 but only 425 voted. After the polling she took the unused ballot papers to Evindo Lodge and was marking the left-over ballot papers of about 425 ballot papers when the police arrived and brought her to Popondetta Police Station where she cried and apologized.
No action was taken by the police to charge her and she was allowed to count in the Counting Centre.

(b)

On 9 July 2022 between 7 pm and 8 pm after the polling at Ononda village Oro Bay Local-level Government the presiding officer Mr. Peter Angito for team 13 Oro Bay LLG and his driver Anthony Bogembo brought the ballot papers to be locked up at the Popondetta Police Station. The security officers asked why there were no scrutineers escorting the two ballot boxes, one box for the open electorate and one box for the regional seat. Mr. Peter Angito told the soldiers that due to a tyre puncture the scrutineers were left behind. Upon hearing that explanation the soldiers were not convinced and severely beat him up with a branch of a tree. When he was searched they found some ballot papers and a substantial sum of money on him. They beat him up severely and Peter Angito was hospitalized.

109. In summary, this ground of the petition alleges that there were two instances of polling officials taking ballot papers away during polling, in suspicious circumstances.

110. I uphold the objections to this ground of the petition, for the same reasons I upheld the same objections to ground 1 of the errors and omissions grounds of the petition, that it: (i) fails to plead facts and figures to demonstrate how, as required by s 218(1) of the Organic Law, the result of the election was affected by the alleged errors and omissions; (ii) fails to plead the elements of s 218(1) of the Organic Law; and (iii) introduces a vague allegation of commission of illegal practices by electoral officers and confuses it with the allegation of errors or omissions, ignoring the distinction between illegal practices under s 215 and errors or omissions under s 218 of the Organic Law.

111. The upshot is that this ground of the petition does not properly and adequately set out the facts relied on to invalidate the election or the return of the first respondent. It does not meet the requirements of s 208(a) of the Organic Law.

112. The defects in this ground of the petition are fundamental and extensive. It cannot be saved by invoking s 217 of the Organic Law. Ground 6 of the errors and omissions grounds is struck out.

SUMMARY OF DETERMINATION OF OBJECTIONS TO THE ERRORS AND OMISSIONS GROUNDS OF THE PETITION

113. The respondents’ objections to all six errors and omissions grounds of the petition have been sustained. All those grounds of the petition are struck out. They are very vague. They each failed to set out the facts relied on to invalidate the petition in a comprehensible, orderly and logical manner and failed to state the petitioner’s case in a way that fairly put the respondents on notice as to the case that they had to meet, thereby failing to meet the requirements of s 208(a) of the Organic Law. These grounds were materially defective and could not be saved by application of s 217 of the Organic Law.

114. The petitioner has submitted that the Court should look at the whole process of the election and not turn a blind eye to irregularities that breach the quality and purity of the election process and that a petition that raises serious complaints, should not be dismissed on technical grounds. However, caution must be exercised when dealing with such submissions. It is not the purpose of an election petition trial to conduct a general review of an election. The purpose is to test the grounds of a petition, which must be proper grounds that provide sufficient facts.

115. One of the undue influence or bribery grounds of the petition, ground 1, has been struck out. The objections to grounds 2, 3 and 4 have failed and those three grounds will proceed to trial. All six of the errors and omissions grounds of the petition are struck out.

116. The question of costs of the hearing of the objections is a matter of discretion. Rule 19(1) of the Election Petition Rules states that the Court “may make such orders as to costs as it deems fit”. I deem it fit that the parties bear their own costs as the objections to competency have not been entirely successful.

Dotaona Lawyers: Lawyers for the Petitioner
Jerewai Lawyers: Lawyers for the First Respondent
Nicholas Tame Lawyers: Lawyers for the Second Respondent

National Court of Papua New Guinea

Parkop v Juffa [2023] PGNC 116; N10153 (9 March 2023)