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Supreme Court of Papua New Guinea |
PAPUA NEW GUINEA
[IN THE SUPREME COURT OF JUSTICE]
SCREV (EP) NO 02 OF 2014
IN THE MATTER OF APPLICATION UNDER SECTION 155(2)(b) OF THE CONSTITUTION
AND
IN THE MATTER OF PART XVIII OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
BETWEEN
MICHAEL KANDIU
Applicant
AND
HON. POWES PARKOP
First Respondent
AND
CYRIL RETAU
Second Respondent
AND
RICKY FUGUNTO
Third Respondent
AND
ELECTORAL COMMISSION OF PAPAUA NEW GUINEA
Fourth Respondent
Waigani: Makail, Kariko & Toliken, JJ
2015: 30th April & 23rd June
SUPREME COURT – Election Petition Review – Review of National Court decision – Dismissal of petition – Petition found to be incompetent – Failure to plead facts – Pleading of grounds of petition – Requirement to plead facts constituting grounds to invalidate election or return – Constitution – Section 155(2)(b) – Organic Law on National and Local-level Government Elections – Section 208(a).
Cases cited:
Kaspa v. Yama [1988-89] PNGLR 197
Application of Ludwig Patrick Schulze (1988) SC578
Application by Herman Joseph Leahy (2006) SC855
Jim Nomane v. Wera Mori (2013) SC1242
Paru Aihi v. Peter Isoaimo & Electoral Commission (2013) SC1267
Amet v. Yama (2010) SC1025
Aide Ganasi v. Sali Subam (2013) SC1277
Philip Kikala v. Electoral Commission & Nixon Mangape (2013) SC1295
Barry Holloway v. Aita Ivarato [1988] PNGLR 99
Albert Karo v. Lady Carol Kidu [1997] PNGLR 28
Dick Mune v. Anderson Agiru (1998) SC590
Sir Peter Lus v. Gabriel Kapris (2003) N2326
Mathais Karani v. Yawa Silupa (2003) N2385
Koimanrea v. Sumunda (2003) N2427
Paias Wingti v. Kala Rawali & Electoral Commission (2008) N3286
Samson Malcolm Kuli v. James Apamia & Electoral Commission (2013) N5275
Pila Ninigi v. Electoral Commission & Francis Awesa (2013) N5322
Philemon Embel v. Pesab Jeffrey Komal & Electoral Commission (2015) N5947
Counsel:
Mr. P. W. Korowi, for the Applicant
Mr. T. Dawidi, for the First Respondent
Mr. M. Kuma, for the Second, Third and Fourth Respondents
JUDGMENT
23rd June, 2015
1. BY THE COURT: Mr. Michael Kandiu was one of the unsuccessful candidates for the National Capital District Regional seat in the 2012 General Election. He came third to the first respondent, The Honourable Mr. Powes Parkop in the race. On 14th September 2012, he filed a petition in EP No 104 of 2012 in the National Court disputing the election of Mr. Parkop. Mr. Parkop and the other respondents objected to the petition on the ground that it was incompetent because it failed to meet the requirement under section 208(a) of the Organic Law on National and Local-level Government Elections. ("Organic Law"). Section 208(a) states that a petition shall set out the facts relied on to invalidate the election or return.
National Court Decision
2. On 07th March 2014, the National Court upheld the objection and dismissed the petition on the ground that it was incompetent. The primary judge found that it failed to meet the requirement in section 208(a) of the Organic Law in that, it failed to plead sufficient material facts constituting the grounds to invalidate the election or return of Mr. Parkop. His Honour also found that the pleading was vague and lacked clarity.
Grounds of Review
3. Mr. Kandiu seeks to review that decision and findings of the Court pursuant to section 155(2)(b) of the Constitution. He relies on 35 grounds. Grounds 1 to 11 relate to the striking out of grounds of bribery. Grounds 12 to 16 relate to the striking out of the grounds of illegal practices. The grounds of errors or omissions that were struck out are from Grounds 17 to 30. Grounds 31 to 35 relate to the striking out of allegations of undue influence.
4. In the National Court, Mr. Kandiu alleged two cases of bribery, six cases of illegal practice, six cases of errors or omissions and two cases of undue influence. Before us, he abandoned the grounds of review concerning illegal practice Case 1, Case 3 and Case 5 and the grounds of review concerning errors or omissions Case 3. He also abandoned all the grounds of review relating to the cases of undue influence. These grounds are, therefore, not considered in this decision.
Principles of Review
5. In our consideration of the review, we are guided by two basic principles of law laid down in the cases of Kaspa v. Yama [1988-89] PNGLR 197; Application of Ludwig Patrick Schulze (1988) SC578; Application by Herman Joseph Leahy (2006) SC855 and subsequently adopted and applied in Jim Nomane v. Wera Mori (2013) SC1242 and Paru Aihi v. Peter Isoaimo & Electoral Commission (2013) SC1267. They are:
6. Mr. Kandiu's main ground of review is that the primary judge erred when he found that the petition did not plead sufficient material facts constituting the grounds to invalidate the election or return of Mr. Parkop and that the pleading of the grounds was vague and too general. We make the point that the dismissal of the petition by the primary judge on the ground that it failed to comply with section 208(a) of the Organic Law was an exercise of discretion. This is because before the National Court can begin its inquiry into an election dispute under section 210 of the Organic Law, it must be satisfied that the petition meets the requirements of sections 208 and 209 of the Organic Law. The pertinent provision under consideration is section 208(a) of the Organic Law.
7. The question of a petition meeting the requirement in section 208(a) of the Organic Law is purely one of law because the inquiry is confine to a consideration of the pleading in the petition. It does not involve a consideration of evidence. That aspect only comes into consideration when the petition is found to be competent. Our consideration of the review is, therefore, based on the first principle, that is, whether the applicant has shown that there is an important point of law to be determined and that it is not without merit.
Bribery
8. Where a petitioner relies on bribery to invalidate an election or return, the petition must set out facts constituting its elements: Amet v. Yama (2010) SC1025; Nomane v. Mori (supra) and Aide Ganasi v. Sali Subam (2013) SC1277. This is because bribery is an offence under section 103 of the Criminal Code. Section 103 states:
"103. Bribery.
A person who —
(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,
is guilty of a misdemeanour.
Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year."
9. The offence of bribery has a high number of alternatives with variable elements to prove. Given this, it is preferable to state the relevant sub-section of section 103 to support the ground of bribery: Aide Ganasi v. Sali Subam (supra). The most common form of bribery associated with elections is where an elector is bribed to vote for the successful candidate. The act of bribery is committed by the successful candidate, or if not, by a person with the knowledge or authority of the successful candidate. This offence is prescribed by section 103(a)(iii) of the Criminal Code. In Philip Kikala v. Electoral Commission & Nixon Mangape (2013) SC1295, the Supreme Court set out the elements of the offence under section 103(a)(iii) as follows at para. 35:
"35. To prove an offence under Section 103(a)(iii) it must be proven that a person:
1 gave, conferred or procured, or promised or offered to give or confer, or to procure or attempted to procure, to, on, or for, any person;
2 any property or benefit of any kind;
3 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."
10. It follows the petition must plead the identity of the person offering the bribe, the identity of the person bribed, the giving, offering, conferring or procuring of the property or benefit of any kind and the purpose for giving, offering, conferring or procuring the property or benefit of any kind, that is, to induce the person bribed to procure the return of the successful candidate or the vote of an elector in the election.
11. The allegations of bribery are set out at paragraph 11(i) to (ix) of the petition. Two cases of bribery are alleged. The opening sentence at paragraph 11 introduces these cases. It states:
"It is alleged that prior to and during commencement of polling on Tuesday 26th and Wednesday 27th June 2012, in the National Capital District, the First Respondent and or his servants and agents most commonly referred to as "campaign co-coordinators", committed several acts of bribery with the knowledge and authority of the First Respondent to induce registered voters to vote for the First Respondent, and with the intention to interfere unlawfully in the free and fair voting, in breach of Section 103 of the PNG Criminal Code Act Chapter 52 (sic) and Section 215(3) of the OLN&LLGE. The specific acts and instances of bribery are as follows:"
12. Sub-paragraphs (i) to (iii) set out facts for Bribery Case 1. Mr. Kandiu alleged that on 13th June 2012 between 6:00 and 9:00 pm, inside a room at Ela Beach Hotel, Mr. Parkop together with the successful candidate and now Member for Moresby South Electorate, Hon. Justin Thatschenko, met all his campaign co-ordinators including a Mr. John Del and gave K20,000.00 to Mr. Del to distribute to registered voters at 6 Mile Ward area including voters to vote for Mr. Parkop.
13. The next day, 14th June 2012 between 9:00 am and 12 midday at Rakamuka settlement, 6 Mile Dump site Mr. Del distributed cash to registered voters at that polling area inducing them to vote for Mr. Parkop and in the process gave K20.00 to a Mrs. Stella Kaupa who received this sum and voted for Mr. Parkop. Mr. Del gave K20.00 to a Mr. Brenson Kaupa Wera and induced him to vote for Mr. Parkop but Mr. Wera refused the money and voted for another candidate.
14. Sub-paragraphs (iv) to (ix) set out the facts for Bribery Case 2. Mr. Kandiu alleged that on 24th June 2012 Mr. Poklip Gilma telephoned and later met with Mr. Don George at around 6:00 pm at Waigani
market and both proceeded to meet Mr. Parkop at his residence at Gerehu. They waited until 11:00 pm and Mr. Gilma went into Mr. Parkop's
house and after 30 minutes, came out and invited Mr. George inside the house. Mr. Parkop in the company of Mr. Ned Gong and some
others gave K2,000.00 in bundles of K2.00 notes to Mr. George and told Mr. George to use the money to buy votes for Mr. Parkop. Mr.
Parkop told Mr. George that he will give K10,000.00. The K2,000.00 is to use during the polling and the balance of K8,000.00 will
be paid to him later.
15. At the same time, Mr. Gong gave to Mr. George a list of names and told him to remove them from the Common Roll for Waigani and
Morata Polling Booths. He further told him to cut their names out and give them to the persons who will be paid money and tell them
to vote for Mr. Parkop.
16. On the polling date of 27th June 2012 at about 8:30 am, Mr. George gave cash of K700.00 to a Mr. Eraman Mandai with instructions for Mr. Mandai to use the money to bribe and/ or lure registered voters to casts their votes for Mr. Parkop. Mr. George promised to pay Mr. Mandai a sum of K2,000.00 at a later date when he receives the balance of K8,000.00 from Mr. Parkop. Mr. Mandai later distributed the K2,000.00 around the polling booths at Morata and lured voters to cast their votes for Mr. Parkop.
17. Mr. George moved around at various polling booths at Morata and paid to registered elderly voters a sum of K50.00 and to K20.00 to K30.00 to the youths and lured all of them including one Mr. Albert Minape to vote for Mr. Parkop. At about 1:00 pm, at a polling booth located in front of the residence of Councillor T. Jacobs, Mr. George met Mr. Minape and bought him some beetle nuts and cigarettes and gave him K50.00 and told him to vote for Mr. Parkop. Mr. Minape took to the money and voted for Mr. Parkop.
18. The primary judge formed the view that the introductory sentence at paragraph 11, was very general and devoid of certainty as to the critical elements of the offence of bribery; the elements being when the act of bribery took place, the identity of the servant or agent of Mr. Parkop and the description of the actual act of bribery. It also failed to state that the alleged acts were committed with the knowledge or authority of Mr. Parkop.
19. Counsel for Mr. Kandiu submits the primary judge misconstrued the pleading at paragraph 11. He submits the facts pleaded in this paragraph are not intended to constitute a separate ground of bribery but to introduce the specific cases of bribery which are set out at sub-paragraphs (i) to (ix). If it is read together with the sub-paragraphs, it makes the grounds of bribery in Case 1 and Case 2 clear and complete. For these reasons, the primary judge erred when he held that the pleading was too general and devoid of certainty. Both counsel for the respondents submit the primary judge correctly formed the view that this pleading is insufficient.
20. In relation to Bribery Case 1, the primary judge found that it was unclear whether it was Mr. Parkop or Mr. Thatschenko who gave K20,000.00 to Mr. Del. If Mr. Del gave K20.00 to Mrs. Kaupa and another K20.00 to Mr. Wera, the petition failed to plead facts to demonstrate that the money was given to them with the knowledge or authority of Mr. Parkop. If the money was given by Mr. Thatschenko without Mr. Parkop's knowledge or authority, the petition failed to plead that the result of the election was likely to be affected and it is just that the candidate should be declared not to be elected or the election should be declared void.
21. In relation to Bribery Case 2, the primary judge formed the view that the pleading was deficient for a number of reasons. First, the pleading that Mr. Parkop told Mr. George that he was giving K2,000.00 to him to use during the polling was vague and too general because it could mean that the money was to be used to transport and feed scrutineers which was a perfectly proper thing to do at election time. Secondly, because the allegation that Mr. Parkop gave Mr. George to buy votes for Mr. Parkop was not supported on the very statement relied on by Mr. Kandiu as the instruction as to how the money was to be used or handled by Mr. George.
22. Thirdly, the allegation that Mr. George gave cash of K700.00 to Mr. Mandai who then distributed the money around the polling booths at Morata is unclear because it does not identify the polling booths in Morata. Fourthly, the pleading does not state how many votes Mr. Parkop and Mr. Kandiu scored from the polling booths from Morata when the votes were counted either as first preferences or at any stage through to elimination.
23. Fourthly, if the money was given to Mr. Minape by Mr. George without the knowledge or authority of Mr. Parkop, then pursuant to section 215(3) of the Organic Law, the petition does not plead that the result of the election was likely to be affected and it is just that the candidate should be declared not to be elected or the election should be declared void.
24. In relation to the specific cases of bribery, counsel for Mr. Kandiu submits the petition sets out sufficient facts because it states the names of the perpetrators of the act of bribery, the inducement used, who was bribed, location, date and time. In respect of the Case 1, the petition specifically pleads that Mr. Parkop gave the sum of K20,000.00 to Mr. Del in the presence of Mr. Thatschencko for the purpose of bribing voters. Counsel submits it is not open to the primary judge to draw the conclusion or assume that the money was given to Mr. Del by Mr. Thatschenko. The only conclusion open to him is that Mr. Thatschenko was present when Mr. Parkop gave the money to Mr. Del.
25. Counsel further submits that the primary judge erred when he found that the pleading did not state how many votes Mr. Parkop and Mr. Kandiu scored from the polling booths from Morata when the votes were counted either as first preferences or at any stage through to elimination. The pleading as to how many votes each of them received in a case where bribery is alleged is not a material fact. Similarly, it is not necessary to plead the names of the polling booths at Morata because they are not material facts.
26. Furthermore, it is not necessary to plead the law and the primary judge was wrong to hold that the petition failed to plead section 215(3) of the Organic Law where the act of bribery is committed without the knowledge or authority of Mr. Parkop. To insist on this pleading is tantamount to pleading the law which is prohibited. The cases of Barry Holloway v. Aita Ivarato [1988] PNGLR 99, Albert Karo v. Lady Carol Kidu [1997] PNGLR 28 and Dick Mune v. Anderson Agiru (1998) SC590 were cited in support of this proposition. Counsel for the respondents concede to the last part of Mr. Kandiu's submission but submit the error is not sufficient to set aside the decision of the primary judge.
27. Finally, counsel submits the primary judge made a clear error on a point of law when he relied on a wrong provision of the Organic Law to find that pleading was incompetent. His Honour relied on section 218 of the Organic Law instead of section 208(a) of the Organic Law. Counsel makes the same submission for Bribery Case 2. Counsel for the respondents submits this submission is misconceived because the question of competency is and was decided based on section 208(a) of the Organic Law. The reference to section 218 of the Organic Law was a typographical error.
28. Counsel further submits the primary judge introduced a new test when he used the word "deficient" to determine the competency of the petition. The test that has been applied by the Court in past cases has been whether the petition pleads sufficient material or relevant facts to constitute the grounds to invalidate an election or return. The use of the word "deficient" is a departure from the test used to determine whether a petition satisfies the requirement to plead facts under section 208(a) of the Organic Law. By applying the "deficiency" test is clearly an error of law. The respondents counter this submission saying it is misconceived. The use of the word "deficient" is a choice of words rather than of substance.
29. Firstly, we observe that the pleading at paragraph 11 which introduces the grounds of bribery shows a growing trend in the way petitioners plead facts constituting grounds of an election petition. This case is one of them. The other is Nomane v. Mori (supra). In that case, the applicant pleaded bribery under section 103 of the Criminal Code at paragraph B7 of the petition. The wording of the pleading is in identical terms as the one in this case and states:
"It is alleged that prior to the commencement of polling on the 7th July 2012, for Simbu Province, and on the day of polling on 7th July 2012 for Chuave Open Electorate, the Respondent and or his agents and or servants committed or engaged in several acts of bribery and/or with his knowledge and authority, to induce or procure votes of the registered voters or electors to vote for him and/or the Respondent, and with the intention to interfere unlawfully in the free voting in the elections by electors, thereby contravening Section 103 of the Criminal Code Act, Chapter 262."
30. In that case, the Supreme Court did not express any views on the pleading nor did it hold that such a pleading is prohibited by section 208(a) of the Organic Law. But this kind of pleading should be discouraged because it is unhelpful. We hold this view because if the object of the requirement to set out the facts in section 208(a) of the Organic Law is to bring to the notice of the Court and the respondents the ground or grounds of the petition, a pleading which does not state the base facts constituting the ground or grounds is irrelevant, unnecessary and should not be permitted.
31. In a case where bribery is alleged, proof of one instance of bribery is sufficient to void an election: section 215(3) of the Organic Law. It is, therefore, necessary to plead only the base facts constituting the elements of the offence. In our view, a pleading which introduces the grounds of bribery without stating the base facts is unnecessary. As the offence of bribery has a high number of alternatives with variable elements to prove, if a prudent petitioner wishes to state the relevant statutory provision eg, the relevant Sub-section of section 103 of the Criminal Code, he should plead that in the paragraph setting out the facts in support of a ground of petition. For these reasons, we are not satisfied that the primary judge erred when he found the introductory sentence at paragraph 11 too general and devoid of certainty with regards to the critical elements of the offence of bribery. This ground is dismissed.
32. In Bribery Case 1, it is clear the primary judge had difficulty trying to work out from the pleadings at sub-paragraphs (i) to (iii) whether Mr. Parkop gave K20,000.00 to Mr. Del at the room at Ela Beach Hotel. This is because it is not pleaded that Mr. Parkop gave K20,000.00 to Mr. Del at the room at Ela Beach Hotel on the night of 13th June 2012. The facts pleaded are; "Mr. Parkop together with the successful candidate and now Member for Moresby South Electorate, Hon. Justin Thatschenko, met all his campaign co-ordinators including a Mr. John Del and gave K20,000.00 to Mr. Del to distribute to registered voters at 6 Mile Ward area including voters to vote for Mr. Parkop."
33. The pleading of the identity of the person offering, giving, procuring, or conferring the property or benefit of any kind must be clear and unambiguous because bribery is a serious allegation. The Court and the respondents must not be left to guess the identity of the perpetrator. In our view, the facts as pleaded leaves open the suggestion that Mr. Thatschenko gave K20,000.00 to Mr. Del and not Mr. Parkop. This conclusion is open to the primary judge to draw because Mr. Thatschenko was present with Mr. Parkop at the time they met all his campaign co-ordinators including Mr. Del when the money was given to Mr. Del to distribute to registered voters at 6 Mile Ward area including voters to vote for Mr. Parkop.
34. We would accept Mr. Kandiu's submission if it was pleaded that Mr. Parkop gave K20,000.00 to Mr. Del in the presence of Mr. Thatschenko. But that is not what is alleged and no amount of clarification by counsel in his submission can cure the ambiguity in the pleading, especially when it is a critical element of the offence. Mr. Kandiu is bound by what he has pleaded in support of this ground and cannot opt out of it. For these reasons, we are not satisfied the identity of the person offering, giving, procuring or conferring the bribe is clear, precise and unambiguous. This ground is dismissed.
35. If paragraph 11 is read as a whole, it is still unclear if the act of bribery in Case 1 was committed with the knowledge or authority of Mr. Parkop. First, the pleading is vague as to the identity of the perpetrator. Secondly, it is vague and lacking as to the purpose to which the money was given because that it does not state that Mr. Parkop told Mr. Del to bribe voters with the money to vote for him. Paragraph 11 states that Mr. Parkop together with Mr. Thatschenko met all his campaign co-ordinators including Mr. Del and gave K20,000.00 to Mr. Del to distribute to registered voters including voters to vote for Mr. Parkop. This ground is also dismissed.
36. In Bribery Case 2, we can understand why the primary judge formed the view that the pleading in relation to the purpose of giving K2,000.00 to Mr. George was deficient. This is because not only is the pleading unclear but it is also contradictory. At sub-paragraph (v), it is alleged Mr. Parkop in the company of Mr. Gong and others gave K2,000.00 to Mr. George and told Mr. George to use the money to buy votes. On the other hand, it is further alleged that Mr. Parkop told Mr. George that he will give Mr. George K10,000.00 but gave K2,000.00 as part payment and the balance of K8,000.00 to be paid later. For these reasons, we are not satisfied it was not open to the primary judge to conclude that the money was given to meet election related costs such as costs for transportation and food for scrutineers. This ground is dismissed.
37. Secondly, the primary judge's finding that the petition failed to state the names of the polling booths at Morata must be understood within the context of the case. It is common knowledge that Morata is a big suburb in the city of Port Moresby. At election time there were more than one polling booth set up for polling at Morata. It is trite law that the purpose of pleading sufficient facts is to give sufficient information to the respondents and the Court of the petitioner's case.
38. And so, while we accept Mr. Kandiu's submission that the names of the polling booths at Morata where Mr. George distributed K700.00 are not material facts, the primary judge was making the point that a general reference to polling booths at Morata without specifying the polling booths where Mr. George distributed K700.00 would not assist the respondents to identify the location(s) of the commission of the offence and enable them to identify eye-witnesses to verify the allegations of bribery against Mr. Parkop. For these reasons, we are not satisfied this ground is made out and we dismiss it.
39. Thirdly, as to the primary judge's finding that the petition failed to state the number of votes Mr. Parkop and Mr. Kandiu scored from the polling booths at Morata, we agree with the submission put forward by Mr. Kandiu's counsel that where bribery is alleged, it is not material to plead the number of votes each of them scored at counting. However, we are of the view this finding alone is not sufficient to set aside the decision of the primary judge because the number of votes scored by each party is not an element of the offence of bribery and is of no consequence. This ground is also dismissed.
40. Fourthly, we reject the submission that the primary judge made an error when he relied on a wrong provision, namely section 218 of the Organic Law to find that the pleading of the grounds of bribery was incompetent. The objection to competency of the petition was based on section 208(a) of the Organic Law and not section 218 of the Organic Law. For this reason, it is clear to us that the reference to section 218 of the Organic Law at paragraphs 47 and 53 in his Honour's judgment was a typographical error. We dismiss this ground.
41. Finally, we find the submission that the primary judge introduced a new test when he used the word "deficient" to determine the competency of the petition misconceived. We accept the respondents' submission the reference to the word "deficient" in the primary judge's judgment was a choice of words. This ground is dismissed.
Illegal Practice
42. The grounds of illegal practice are pleaded at paragraphs 12 to 29 of the petition. Grounds on Illegal Practice Cases 1, 3 and 5 were abandoned at the hearing and are, therefore, not considered. Section 215(3) of the Organic Law provides that where it is alleged the illegal practice, other than bribery or undue influence, was committed by a person other than the winning candidate, the petition must also plead such illegal practice was committed with the knowledge or authority of the winning candidate. Further, the petition must also plead further facts that show that the result of the election was likely to be affected or the election should be declared void.
43. Paragraphs 15 and 16 set out the facts for Illegal Practice Case 2. It is pleaded on Wednesday 27th June 2012, voting took place at Hanuabada Mission Station. However, the ballot-box containing the marked ballot-papers was retrieved and transported to Hohola Police Station and kept there for the whole day before it was put into a container at PNGIPA Hall for safekeeping.
44. On Friday 06th July 2012 at about 9:00 pm, during the counting of votes at PNGIPA Hall, all scrutineers for candidates objected to the counting of all marked ballot-papers contained in the said ballot-box on the ground that the inner and outer seals of the box were broken. As a result of the objection, the Returning Officer for Moresby North-West Open electorate Mr. Joseph Frahgi unilaterally made an unusual decision to burn the marked ballot-papers totalling 491 votes outside the counting centre whilst the counting was in progress. The burning of the ballot-box was unusual, unprecedented, illegal and in breach of section 215(3) of the Organic Law.
45. The primary judge accepted that the action of the Returning Officer to have the ballot-papers burnt was illegal. But he found that to allege the action was in breach of section 215(3) of the Organic Law was not a logical submission because under section 153A of the Organic Law, the Returning Officer had the discretion to admit or exclude it from counting and he decided to exclude it from counting. If he excluded it from counting, there was no allegation that his decision was wrong. The other reason was that, given that the allegation is one of illegal practice, the pleading was deficient because there were no further facts to show that the result of the election was likely to be affected and it was just that the candidate should be declared not to be elected or the election should be declared void.
46. Counsel for Mr. Kandiu submits the burning of 491 marked ballot-papers constituted an illegal act within the meaning of section 215(3) of the Organic Law. The person who committed the illegal act is the Returning Officer Mr. Frahgi. The date, time and location of the illegal act are also pleaded. Counsel submits the facts as pleaded clearly constituted a ground to void the election or return of Mr. Parkop.
47. There can be no argument that the burning of the ballot-box was illegal. However, the ballot-box was the centre of controversy amongst the scrutineers of candidates. The scrutineers objected to its admission because its inner and outer seals were broken. Firstly, we point out that the burning of the ballot-box was not the basis of the objection under section 153A of the Organic Law. Secondly, all scrutineers for candidates objected to its admission to scrutiny.
48. Mr. Kandiu did not submit that his scrutineer(s) opposed its exclusion from counting so it must be the case that he also supported its exclusion from counting. It follows the burning was an after event. Mr. Kandiu cannot hack back and complain about the ballot-box after it was excluded. The exclusion of the ballot-box was within the discretion of the Returning Officer and it is not Mr. Kandiu's contention that the discretion was wrongly exercised. For these reasons, we find Mr. Kandiu's submission that the burning ballot-box constituted an illegal practice is misconceived.
49. As the burning of the ballot-box occurred after it was excluded from counting, the number of ballot-papers in it would have no bearing on the final result of the election. It follows the further finding by the primary judge that there were no further facts to show that the result of the election was likely to be affected and it was just that the candidate should be declared not to be elected or the election should be declared void is of no consequence. This ground is not made out and is dismissed.
50. Paragraphs 19 to 23 of the petition set out the facts for Illegal Practice Case 4. It is alleged on 27th June 2012, during polling at Naotana Junction Ward 11 LLG at Gerehu in the Moresby North-West Open electorate, a group of policemen numbering up to 9 arrived in four motor vehicles and chased away voters because the polling area was Mr. Kandiu's strong hold. Some of them were identified as Constable Paul Komboi who is and was Mr. Parkop's official personal body guard, Constable Moses Gene and Constable Monty. They came with Mr. Honk Kiap who is and was the Deputy City Manager and Chairman of the NCD Election Steering Committee.
51. As a result of the actions of the policemen, over 50% of the total registered voters did not vote. Out of 597 ballot-papers issued for Naotana Junction A to K, 143 votes were cast and 446 ballot-papers were not. As for Naotana Junction L to Z, 171 votes were cast out of 582 issued ballot-papers. 408 ballot-papers were unused. It is further alleged that a total of 854 unused ballot-papers did affect the result of the election. The actions of the policemen were done with the knowledge or authority of Mr. Parkop because they came with Mr. Kiap who is the Deputy City Manager under Mr. Parkop's Governorship.
52. The primary judge found the pleading that over 50% of registered voters left the polling area and did not vote was a generalised statement because it did not specify the actions of the wrongdoers. Secondly, the assertion that persons who were alleged to have caused the disruption also caused "influence and intimidation upon the voters to vote in a particular manner in favour of the first respondent (Mr. Parkop)" was not supported with base facts to ground the assertion that the voters were forced to vote in favour of Mr. Parkop.
53. Thirdly, the primary judge found the pleading in relation to the number of unused ballot-papers as evidence of the number of eligible voters chased away from the polling booth was too general. Finally, he found there were no facts to show that the result of the election was likely to be affected; and it was just that the candidate should be declared not to be elected or that the election should be declared void.
54. Mr. Kandiu's counsel submits the pleading do not support the primary judge's findings because facts pleaded identified the perpetrators, location of the alleged illegal practice, date, time, description of the illegal act, number of votes affected and even the description of the motor vehicles. These facts give the respondents sufficient information as to the type of case they are expected to meet at trial.
55. We accept Mr. Kandiu's submission that the date, time, location and identity of the alleged perpetrators are pleaded. In addition, the number of votes affected and description of the motor vehicles are pleaded. The pleading also attempts to connect the actions of the policemen to Mr. Parkop based on the relationship between Mr. Parkop as the Governor and Mr. Kiap as the Deputy City Manager and who was present with the policemen.
56. We are satisfied these facts will enable the respondents to locate the alleged perpetrators and verify the allegation against them. But the issue is what is the illegal act complained of? It is unclear because the allegation that the alleged perpetrators caused "disturbance, obstruction, influence and intimidation upon voters" is too general. What are the disturbance, obstruction, influence and intimidation? Are they stopping voters from voting and if it is so, how were the voters stopped? If the policemen threatened voters to vote for Mr. Parkop, how did they threaten the voters? Did they verbally or physically threaten the voters? The pleading does not specify these factual matters.
57. It is necessary to specify the illegal act because there are different types of illegal acts commonly referred to as electoral offences under the Organic Law and the Criminal Code. For example, is Mr. Kandiu alleging that the policemen committed an offence under section 102 (Undue influence) by the assertion that policemen "influenced" and "intimidated" voters to vote for Mr. Parkop or they committed an offence under section 108 (Interference at elections) of the Criminal Code by the assertion that they caused "disturbance" and "obstruction"? The details are missing. Conversely, we do not believe that to insist on Mr. Kandiu to plead these facts is tantamount to pleading evidence nor do we believe that the primary judge was nit-picking when he held that these facts were missing.
58. We conclude while the date, time, location and identity of the alleged perpetrators are clear, the facts establishing the type of illegal act are lacking and unclear. For these reasons, we are not satisfied it was not open to the primary judge to reach that conclusion. That being the case, we consider that the further finding by the primary judge that there were no further facts to show that the result of the election was likely to be affected and it was just that the candidate should be declared not to be elected or the election should be declared void is of no consequence. This ground is dismissed.
59. Paragraphs 27 to 29 of the petition set out the facts for Illegal Practice Case 6. The same kind of allegation as in Illegal Practice Case 4 is alleged here. This time the same group of policemen led by Mr. Kiap went to the polling place at 5 Mile Jack Pidik Park on Tuesday 26th June 2012 on the day of polling and chased voters away. In the process, they assaulted Mr. Kandiu's scrutineer Mr. Stanley Lau. A total of 639 voted were affected by the actions of these persons. The actions of the policemen were done with the knowledge or authority of Mr. Parkop because they went there with Mr. Kiap who is and was the Deputy City Manager under Mr. Parkop's Governorship.
60. As was the finding in Illegal Practice Case 4, the primary judge also found the pleading that a total of 639 votes were affected by the conduct of the perpetrators named therein was too general. It did not specify the actions of the wrongdoers. Mr. Kandiu's counsel repeats the submission he made in support of Illegal Practice Case 4 in this case. We adopt the reasons we have given in Illegal Practice Case 4 and dismiss this ground.
Errors or Omissions
61. Section 218 of the Organic Law provides amongst others that an election cannot be avoided on account of an error of or an omission by, an officer which did not affect the result of an election. Where a petition is grounded on errors or omissions by an electoral official under section 218 of the Organic Law, it must state the error or omission complained of, the error or omission was committed or made by electoral official and must plead that the error or omission did affect the result of the election. Failure to plead facts in support of any of the elements under section 218(1) may result in the petition being incompetent: Sir Peter Lus v. Gabriel Kapris (2003) N2326; Mathais Karani v. Yawa Silupa (2003) N2385 and Koimanrea v. Sumunda (2003) N2427.
62. The facts constituting Errors or Omissions Case 1 are set out at paragraphs 30 to 38 of the petition. The allegation is that the Acting Returning Officer for Moresby North-East Open electorate breached the procedure for objection under section 153A of the Organic Law when he refused to admit 12 ballot-boxes to scrutiny from the Six Mile Ward Area. The ballot-boxes allegedly contained 9,813 ballot-papers. The decision to refuse to count was made by the Acting Returning Officer Mr. Joe Kandai on a complaint of a candidate in the Moresby North-East Open electorate Noel Anjo who subsequently withdrew it. However, the decision to refuse to count was maintained and as a result, the number of ballot-papers affected being 9,813 exceeded the difference in votes at the final count and declaration between Mr. Parkop and the runner-up Mr. Wari Vele.
63. Firstly, the primary judge held that if Mr. Kandiu claimed the mandatory procedure under section 153A of the Organic Law was not followed in rejecting the 12 ballot-boxes from scrutiny, the procedure provided under this provision is not in mandatory terms but gives the Returning Officer discretion to admit or reject a ballot-box from scrutiny. Any challenge had to be couched in terms that challenged the exercise of discretion by the Returning Officer and/ or the Electoral Commission. Secondly, he found that the Returning Officer had no discretion to refuse to follow or comply with the decision or direction of the Electoral Commission and correctly followed the decision or direction of the Electoral Commission when he excluded the ballot-box from scrutiny.
64. Thirdly and finally, the primary judge found Mr. Kandiu's claims that the directions of the Electoral Commission "were in general terms and vague without setting out the reasons under which they have formed the opinion that the 12 ballot boxes were tempered with and the integrity (sic) ballot marked papers in them were compromised" was vague and too general and failed to disclose where the Electoral Commission fell into error in the exercise of its discretion in rejecting the ballot-boxes from counting.
65. The first point of counsel's submission is that the primary judge had no power to interpret section 153A of the Organic Law because it is a constitutional provision and falls within the exclusive jurisdiction of the Supreme Court and only the Supreme Court has jurisdiction to express a view on the application of this provision. His Honour erred when he assumed that jurisdiction and expressed a view on this provision. Secondly, there were sufficient facts pleaded to show that the procedure on objection to ballot-box to scrutiny under section 153A of the Organic Law was breached. To plead more than what has been pleaded would amount to pleading evidence rather than facts which is prohibited. Counsel relies on Barry Holloway v. Aita Ivarato (supra), Albert Karo v. Lady Carol Kidu (supra) and Dick Mune v. Anderson Agiru (supra) to support this submission.
66. The first point of counsel's submission is misconceived because there is no suggestion that there are conflicting views expressed by judges of the National Court on the application of section 153A of the Organic Law which would require the Supreme Court to intervene and given an opinion: see section 18(1)&(2) of the Constitution. The primary judge was entitled to express a view on the application of this provision because it was the basis of the Returning Officer's decision to reject the ballot-boxes from scrutiny. The Returning Officer was asked to exercise his power under this provision because one of the candidates Mr. Anjo objected to the admission of the ballot-boxes and he did. We find no error has been committed by the primary judge and dismiss this ground.
67. As to the second point, the allegation is that the Acting Returning Officer for Moresby North-East Open electorate breached the procedure for objection under section 153A of the Organic Law. In a case where procedural requirements are not followed by the Returning Officer, it constitutes a breach of statutory duty and clearly comes under errors or omissions within the terms of section 218 of the Organic Law. This was the point the primary judge was making when he held that any challenge had to be couched in terms that challenged the exercise of discretion by the Returning Officer and/ or the Electoral Commission. But there are no facts pleaded to show how the Acting Returning Officer breached the procedure under section 153A of the Organic Law except a vague reference to the withdrawal of the objection by Mr. Anjo and the decision by the Electoral Commission to reject the ballot-boxes lacked reasons.
68. Section 153A is very clear. It states:
"153A. Excluding ballot-box from scrutiny.
(1) Subject to this section, a Returning Officer may refuse to admit to scrutiny a ballot-box containing marked ballot-papers where he is of the opinion that:—
(a) the ballot-papers in it were not lawfully casted; or
(b) the ballot-box was tampered with and the integrity of the ballot-papers in it were compromised.
(2) Where objection is taken to a ballot-box being admitted to scrutiny by a scrutineer or by a polling officer who polled with the ballot-box, the Returning Officer may require the objection and the grounds of the objection to be reduced into writing and may require any responses from a scrutineer to be in writing and for the relevant President Officer and other polling officers as are available at the scrutiny to comment on the objections and the responses given before making a decision on such objection.
(3) A ballot-box that is damaged but its contents have not been disturbed is not to be rejected for the reason of the damage.
(4) A decision of a Returning Officer under this section may not be challenged other than by way of petition."
69. This provision has been considered in a number of cases in the National Court, some of them are Paias Wingti v. Kala Rawali & Electoral Commission (2008) N3286; Samson Malcolm Kuli v. James Apamia & Electoral Commission (2013) N5275; Pila Ninigi v. Electoral Commission & Francis Awesa (2013) N5322 and Philemon Embel v. Pesab Jeffrey Komal & Electoral Commission (2015) N5947. Briefly, the proper procedure is if a scrutineer, candidate or polling officer objects to a ballot-box being admitted to scrutiny, the Returning Officer must address his or her mind to the objection and make an independent decision, subject only to direction by the Electoral Commission, to admit or refuse to admit the ballot-box to scrutiny. Secondly, the Returning Officer must document the objection, record the decision making process and clearly state what opinion has been formed for the purposes of section 153A of the Organic Law and the reasons for forming that opinion.
70. If the allegation is the Returning Officer followed the decision or direction of the Electoral Commission and rejected the ballot-boxes despite the withdrawal of the objection by Mr. Anjo, it is too late for Mr. Kandiu to complain about it because the Returning Officer had made a decision to exclude them from scrutiny after consulting the Electoral Commission. The need to consult the Electoral Commission is necessary because as was held in Philemon Embel v. Pesab Jeffrey Komal (supra), there must be uniformity in the decision in order to avoid conflicting decisions. The decision of the Returning Officer was made based on the objection of Mr. Anjo. Mr. Kandiu cannot hack back and ask the Returning Officer to admit the ballot-boxes to scrutiny and counting. For these reasons, we are not satisfied that the exclusion of the ballot-boxes despite withdrawal of the objection constituted an error or omission within the meaning of section 218 of the Organic Law. This ground is misconceived and is dismissed.
71. For Errors or Omissions Case 2, the facts are set out at paragraphs 39 to 41 of the petition. The allegation is that on Tuesday 26th June 2012, at polling at Pari village booth 2, Community Hall area, Ward 3, the Presiding Officer Mr. John Naime did not sign the back of 506 marked ballot-papers out of 801 issued ballot-papers as required by sections 126 and 153 of the Organic Law. At counting, these ballot-papers were declared "informal" by the Returning Officer for Moresby South Open electorate and not counted. The failure by the Presiding Officer to sign the ballot-papers was deliberate to sabotage the results of the election and constituted a material error or omission within the meaning of section 218 of the Organic Law.
72. The primary judge formed the view there were no facts pleaded to support the assertion that the correct ballot-papers were presented for scrutiny when the ballot-box was presented and opened for scrutiny and counting. Secondly, if the winning margin was 3,977 votes and 506 votes were affected, the error did not affect the result of the election because the number of votes affected was less than the winning margin.
73. We do not accept the primary judge's finding that there are no facts to support the assertion that the Presiding Officer committed an error when he failed to initial the ballot-papers. In our view, a failure to plead that correct ballot-papers were presented for scrutiny is not fatal to this ground because it is not a material fact. On the other hand, it is sufficient to plead that ballot-papers were excluded from counting because they were not initialled by the Presiding Officer. As they were not initialled at the back by the Presiding Officer, they are considered informal within the meaning of sections 126 and 153 of the Organic Law. We are satisfied an error is apparent here.
74. But we are not satisfied that the error is sufficient to affect the final result of the election. As correctly found by the primary judge, if the winning margin was 3,977 votes and 506 votes were affected, the error or omission when considered alone did not affect the result of the election because the number of votes affected was less than the winning margin. The success of this ground is dependent on the other grounds in Errors or Omissions Case, 4, Case 5 and Case 6. If they succeed, it will succeed.
75. In relation to Errors or Omissions Case 4, the facts are set out at paragraphs 45 to 47 of the petition. The allegation is that on Wednesday 27th June 2012, at polling at Vanama Settlement polling booth in the Moresby South Open electorate, 399 marked ballot-papers had three different signatures on the back of each ballot-paper. This is in breach of section 126 of the Organic Law which requires only one signature. Despite objection by scrutineers and other candidates, the ballot-papers were counted. The failure to ensure that the ballot-papers were properly marked at polling constituted an error or omission under sections 126 and 153(1)(a) of the Organic Law. Further, the action of the Presiding Officer at the polling booth was an error or omission that affected the result of the election within the meaning of section 218 of the Organic Law.
76. The primary judge formed the view that the pleading of facts was deficient because firstly, section 126 of the Organic Law provides that a ballot-paper must be initialled by the Presiding Officer. In this case, all 399 ballot-papers contained three different signatures. The pleading did not state that the Presiding Officer did not initial the ballot-papers, so it must be the case that the Presiding Officer initialled the ballot-papers.
77. Secondly, section 153(5) of the Organic Law states "a ballot-paper shall not be informal for any reason other than a reason specified in this section." Sub-paragraphs (1), (2), (3) and (4) of section 153 set out the reasons for a ballot-paper to be informal. In this case, the pleading did not concern the marking of voter's preferences in the front of the ballot-paper. The pleading concerned the markings on the back of the ballot-paper. This is not covered in any of the reasons in the Sub-paragraphs and therefore, not a reason to find that the ballot-papers were informal. Finally, the method of authentication with three initials was consistent for all ballot-papers and not a portion of ballot-papers from the polling area. There is no pleading that the ballot-papers were marked just for one candidate or for Mr. Parkop alone.
78. Counsel for Mr. Kandiu repeats the submission made in support of Errors or Omissions Case 1 where it was submitted that the primary judge had no power to interpret section 153A of the Organic Law because that power is vested in the Supreme Court [see paragraph 64 above]. This time, he makes the submission in relation to the application of section 153 of the Organic Law. We adopt the reasons we gave earlier in Errors or Omissions Case 1 [see paragraph 65 above] and dismiss this ground.
79. In the alternative, counsel submits the primary judge misconstrued the ground of the petition. Section 153(1)(a) of the Organic Law requires that one Presiding Officer must initial a ballot-paper. In this case, the allegation is that three different signatures were found at the back of the ballot-papers instead of one from the Presiding Officer. This shows that there were three different persons who initialled the ballot-papers and this constitutes an error or omission within the meaning of section 218 of the Organic Law.
80. The grounds on which a ballot-paper may be found to be informal are set out in section 153 of the Organic Law. It states:
"153. Informal ballot-papers.
(1) Subject to this section, and to Divisions 3 and 4 and the Regulations, a ballot-paper is informal where:—
(a) it is not authenticated by the initials of the presiding officer or by an official mark as prescribed; or
(b) subject to Subsections (2) and (3), it has no vote indicated on it or it does not have the voter's first preference for one candidate and his contingent votes for two other candidates or where there are less than two other candidates, for the remaining candidate; or
(c) subject to Subsection (4), it has on it any mark or writing (not authorized by this Law or Regulations made under this Law to be put on it) by which, and on the face of the ballot-paper alone, in the opinion of the officer conducting the scrutiny, the voter can be identified.
(2) Where there are two candidates only and the voter has indicated his vote by inserting the identification numbers or the name of one candidate for the first preference and left the other two squares and lines blank, the voter shall be deemed to have indicated the order of his preference for both candidates.
(3) Where there are three candidates only and the voter has indicated his vote by inserting the identification numbers and/or the names of two candidates for the first and second preferences, and the square and line for the third preference has been left blank, the voter's preference shall be deemed to have indicated his preferences for all candidates.
(4) Subsection (1)(c) does not apply to a mark or writing placed on a ballot-paper by an officer, notwithstanding that the placing of the mark or writing on the ballot-paper is a contravention of this section.
(5) Subject to Divisions 3 and 4, a ballot-paper shall not be informal for any reason other than a reason specified in this section."
81. This provision does not state that a ballot-paper is informal if it is initialled at the back by more than one person. On the other hand, it states in Sub-section (1)(a) that a ballot-paper is informal if it is not initialled by the Presiding Officer or by an official mark as prescribed. The second part of Sub-section (1)(a) (Initialled by an official mark as prescribed) does not apply here so as Sub-sections (2), (3) and (4). The first part of Sub-section 1(a) applies and leaves open the argument that ballot-papers can be initialled by more than one Presiding Officer. It is not uncommon for a polling booth to have more than one Presiding Officer and Polling Clerk. Having more than one Presiding Officer is to cover for any unexpected emergencies in the event that the Presiding Officer is unavailable. Section 238 of the Organic Law recognises this need and provides that the Returning Officer may appoint one or more Presiding Officers. It states:
"238. Presiding officers, etc.
(1) The Returning Officer may appoint one or more persons as Presiding Officers to assist, subject to the control of the Returning Officer, in the conduct of polling at an election.
(2) The Presiding officer may assist the Returning Officer in the scrutiny and counting of votes at the election.
(3) The Returning Officer may appoint one or more persons as Poll Clerks to assist, subject to the control of the Returning Officer, in the conduct of the polling."
82. It is not pleaded that there was only one Presiding Officer at the polling booth and he was the only one authorised to initial the ballot-papers and the discovery of three different initials on the back of the ballot-papers meant that persons other than the authorised Presiding Officer initialled them. There is also no pleading that by allowing persons other than the authorised Presiding Officer to initial the ballot-papers, the Presiding Officer committed an error or omission within the meaning of sections 126 and 153 of the Organic Law. This was the gist of the primary judge's reasons when he rejected Mr. Kandiu's contention that the ballot-papers were not properly authenticated because ballot-papers bearing three different initials did not fall within any of the grounds set out under section 153 of the Organic Law. We find no error has been committed by the primary judge and dismiss this ground.
83. The facts for Errors or Omissions Case 5 are set out at paragraphs 48 to 53 of the petition. During counting on the night of Sunday 05th August and Monday 06th August 2012, the counting officials failed to conduct proper quality check for tallies of votes for Moresby North-East Open electorate and Moresby North-West Open electorate. As a result, there was a massive difference of 1,407 votes wrongly added and tallied to Mr. Parkop's final votes. Despite objection by scrutineers for Mr. Kandiu and other candidates, the third respondent refused and allowed the difference to be added to Mr. Parkop's tally. The actions of the third respondent and counting officials constituted a material error or omission and affected the result of the election within the meaning of section 218 of the Organic Law.
84. The counting officials failed to conduct proper quality check for tallies of votes for Moresby South Open electorate. On the first count of final allowable votes, the first total figure was 6,495 votes. After four separate counts, the final allowable votes came to 6,231 (after deduction of 14 informal votes). The difference was 250 votes. As a result, 250 votes were wrongly added and tallied to Mr. Parkop's final votes. Despite objection by scrutineers for Mr. Kandiu and other candidates, the Returning Officer Mr. Moka Havara refused and allowed the difference to be added to Mr. Parkop's tally. The actions of the third respondent and counting officials constituted a material error or omission and affected the result of the election within the meaning of section 218 of the Organic Law.
85. Firstly, the primary judge formed the view that pleading of the figures and data recorded at the counting in the table was deficient because it is not pleaded that the figures or data were taken from the official records of the Electoral Commission at the relevant time. Failure to plead this gives rise to the question as to the reliability and authenticity of the figures or data relied on and produced by Mr. Kandiu to support the ground to invalidate the election or return of Mr. Parkop. The unreliability and authenticity of the figures or data is confirmed by a discrepancy in the figure for the total votes after end of preliminary count. There, it is pleaded that when 12,504 votes is added to 8,992 votes and 6,494 votes, the total number of votes is 28,684. This figure is wrong because the correct total number of votes is 27,990.
86. The submission made on behalf of Mr. Kandiu is that, the reliability and authenticity of the figures or data pleaded in the table are matters of evidence and can only be decided after a trial. We uphold this submission. When the Court hearing an objection to competency descends into matters of evidence, the determination is not one of competence but substance. The reliability and authenticity of the figures or data relating to the number of votes scored by candidates per se is not a competency issue. It is a matter of evidence. Evidence will have to be called to establish the correctness of the figures, the error or omission committed by the electoral officials and whether the result of the election was affected when the figures are tallied. This ground is upheld.
87. But that is not all. Secondly, the primary judge held that there were no facts to show how there was a massive difference of 1,407 votes which was wrongly added to Mr. Parkop's tally. Thirdly and finally, he held that the facts pleaded at paragraphs 51 and 52 explained Mr. Kandiu's argument in relation to the discrepancy in the total allowable votes but the error or omission did not affect the result of the election because the total number of votes affected was only 250. The winning margin was 3,977. The total number of votes affected was less than the winning margin.
88. Mr. Kandiu's submission is the primary judge's decision that there were no facts to show how there was a massive difference of 1,407 votes which were wrongly added to Mr. Parkop's tally was wrong because when the figure of 1,407 votes is added to the other number of votes affected in Errors or Omissions Case 4 and Case 6, it shows that the result of the election was likely to be affected.
89. We agree with the primary judge that there are no facts to show how there was a massive difference of 1,407 votes which were added to Mr. Parkop's tally. There are no facts to show the error or omission by the electoral official except a vague reference to electoral officials not properly conducting quality checks. It follows Mr. Kandiu's contention that the figure of 1,407 votes if added to the votes affected by errors or omissions in Case 4 and Case 6 is of no consequence. There is no merit in this ground and it is dismissed.
90. Paragraphs 54 to 56 of the petition set out the facts for Errors or Omission Case 6. The allegation is that there were massive deliberate variation in the total number of ballot-boxes and ballot-papers allocated to each polling booth in the three Open electorates which affected the result of the election of the Provincial seat. Amongst them were widespread changes to serial numbers and ballot-papers for many ballot-boxes, ballot-boxes for a polling location were moved to a different polling location, change of polling locations outside the gazetted polling locations and change of polling dates.
91. The primary judge held that the essential facts for this ground pleaded at paragraph 54 of the petition were general statements because they did not state facts that specify instances of errors or omissions. Amongst others, the allegation of widespread changes to the serial numbers and ballot-papers for many ballot-boxes was too general because the details of the changes, which ballot-papers and ballot-boxes were affected or from which polling booth or polling areas the ballot-papers came were missing.
92. Another instance is the allegation that most registered voters in all three (3) open electorates did not cast their votes because of premature closure of polling by polling officials was too general because the details provided in the table at paragraph 54 of the petition alone were not sufficient to ground the argument that the short polling time was the sole reason for a large percentage of voters failing to cast their votes. The other allegation that was found to be too general was that there was no police security provided to transport ballot-boxes from Electoral Commission Office to each of the polling areas in the electorate. This was because the details of the polling areas were missing.
93. Mr. Kandiu's counsel submits the primary judge's finding that the facts pleaded are too general and failed to specify the instances of errors or omissions is wrong because the details are set out in the table at paragraph 54 of the petition. They are:
(a) ward numbers affected,
(b) polling booth locations affected,
(c) eligible number of voters in a particular polling area,
(d) actual number of voters that voted indicated by the word "used",
(e) actual number of voters that did not vote indicated by the word "unused",
(f) start time, and
(g) closing time.
94. Counsel further submits if the primary judge had considered the facts as pleaded, they show that a total of 45,000 votes were affected and the result of the election would have been affected given that the winning margin was 3,977 votes.
95. We can see the point Mr. Kandiu is trying to make in paragraph 54 of the petition. There is more than one instance of errors or omissions committed by the electoral officials and they are not confined to one polling booth. They are widespread. These are very serious allegations Mr. Kandiu makes against the electoral officials. It is, thus, incumbent on him to plead sufficient material facts to back his assertions. The pleading at paragraph 54 is an example of what we would term as a "lump sum pleading". This is because instances of errors or omissions are lumped together in one paragraph. Then the details of names of polling booths, number of ballot-papers issued per polling booth, number of votes cast and number of unused ballot-papers are pleaded in a table form. In our view, this style of pleading is not ideal and should be discouraged because it does not specify the errors or omissions. The base facts constituting the errors or omissions are missing.
96. There is no question that there may be many instances of errors or omissions committed by electoral officials at elections so as different types of errors or omissions. Some of the different types of errors or omissions are those alleged by Mr. Kandiu at paragraph 54 of the petition. Widespread changes to serial numbers and ballot-papers for many ballot-boxes; many ballot-boxes for one particular polling area or booth wrongly moved to a different polling area or booth; most registered voters not casting their votes because of premature closure of polling by polling officials; no security provided to transport ballot-papers and boxes from the Electoral Commission Office to each of the polling areas in the open electorates; changes made to polling areas from gazetted areas to non-gazetted areas; confusion in the arrangement of names in alphabetical order (eg. A-K, L-P, R-Z, etc) for one gazetted polling area causing registered voters to move from one location to another searching for their names and eventually ending up not voting and recurrent same votes (same figure) scored in many polling areas by Mr. Parkop suggesting irregularity in scrutiny and counting.
97. As in a case of bribery, where errors or omissions is alleged, proof of one instance of error or omission is sufficient to void an election: section 218 of the Organic Law. It is, therefore, necessary to plead only the base facts constituting the error or omission. In a case where the number of votes affected by one instance of error or omission is higher than the winning margin, it is preferable to plead and rely on it, instead of pleading and relying on many instances of errors or omissions. To rely on one instance of error or omission which has a higher number of votes affected than the winning margin would require an honest and serious assessment of the evidence in support of it and the evidence must credible and sufficient to prove it at trial.
98. Where the number of votes affected by the error or omission is less than the winning margin, it would be necessary to plead and rely on more than one instance of error or omission in order to secure sufficient number of votes higher than the winning margin to prove that the result of the election was likely to be affected.
99. Applying these criteria to the pleading at paragraph 54, it may be that there were widespread changes to the serial numbers and ballot-papers during polling in the three (3) open electorates but it may not be necessary to prove all of them. Because in order to rely and prove all of them at trial, it is necessary to plead the base facts constituting each of the instances of errors or omissions and this may be a tedious exercise. It follows it is sufficient to plead one instance of error or omission which has a higher number of votes affected than the winning margin so long as there is credible evidence to prove it at trial.
100. The primary judge was making this point when he held that the allegation that there was widespread changes to serial numbers and ballot-papers during polling amongst others, lacked details. For the foregoing reasons, we are not satisfied that the conclusion reached by the primary judge was wrong and dismiss this ground.
Conclusion
101. Except for bribery, attempted bribery and undue influence and apart from pleading and establishing the type of illegal practice or error or omission, a petitioner is required to plead and establish that the illegal practice or error or omission did affect the result of the election in terms of number of votes. After the primary judge found that each case of illegal practice and errors or omissions lacked sufficient facts and struck them out, Mr. Kandiu was left with no grounds to prove that the result of the election was likely to be affected.
102. Except for Errors or Omissions Case 1, we have also upheld the primary judge's finding in each case of illegal practice and errors or omissions. Even though we have upheld in part the ground in Errors or Omissions Case 1, the number of votes affected is 506. On its own, it is not sufficient to affect the result of the election because it is less than the winning margin of 3,977 votes. The end result is Mr. Kandiu has failed to show that the petition complied with section 208(a) of the Organic Law. That means, the decision of the primary judge must be upheld and the application for review must fail.
Order
103. The orders are:
1. The application to review the decision of the National Court of 07th March 2014 in EP No 104 of 2012 is dismissed.
2. The decision of the National Court of 07th March 2014 to dismiss the petition in EP No 104 of 2012 as being incompetent is upheld.
3. The applicant shall pay the respondents' costs of the proceedings, to be taxed, if not agreed.
4. The security deposit of K5,000.00 held by the Registrar shall be paid to the respondents in equal portions and is to be applied
towards settlement of the respondents' costs.
_____________________________________________________________
Korowi Lawyers: Lawyers for the Applicant
Dawidi Lawyers: Lawyers for the First Respondent
Parua Lawyers: Lawyers for the Second, Third and Fourth Respondents
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URL: http://www.paclii.org/pg/cases/PGSC/2015/32.html