Unreported National Court Decisions
N1628
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
EP NO. 16 OF 1997
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL ELECTIONS
AND
IN THE MATTER OF THE DISPUTED RETURNS FOR THE KAGUA-ERAVE OPEN ELECTORATE
AND
CHARLES LUTA MIRU - PETITIONER
AND
DAVID BASUA - 1ST RESPONDENT
AND
YAPINA MANGO - 2ND RESPONDENT
AND
ELECTORAL COMMISSION - 3RD RESPONDENT
Waigani
Sawong J
7 October 1997
14 October 1997
GENERAL ELECTIONS - National Parliament - Petition disputing election return - Grounds of Petition - undue influence - attempted bribery - illegal acts - errors and or omissions by Electoral officials - impersonation - double voting
APPLICATION TO DISMISS PETITION - grounds of application - no facts pleaded - insufficient material facts pleaded - Application to dismiss Petition - witness failing to attest properly and or describing his occupation as “villager” - S.  208(d) of Organic Law.
Counsel
Mr Nandi for the Petitioner
Mr Kuimb for the 1st Respondent
Mr Steven for the 2nd Respondent
DECISION
14 October 1997
SAWONG J:  The First, Second and the Third Respondents seek to have the petition dismissed either in the whole or some parts of it.
The respondents’ application is on the basis that the petition does not comply with the requirements of S. 208 (a) and (d) of the Organic Law on National and Local Level Government Elections (“the Organic Law”).
There are three basic ground upon which the Petitioner seeks to invalidate the election results and the return of the First Respondent as member for the Kagua-Erave Open Electorate.
The first lot of grounds are set out in paragraphs 1.1 to 1.7 inclusive.  The allegation in these paragraphs allege undue influences.  The next ground is based on alleged act of attempted bribery.  This is set out in paragraph 2 of the Petition.  The last ground consists of various allegations of illegal acts, errors or omissions committed by the Second Respondent and or by the officials of the Third Respondent.
THE LAW
There is no dispute between counsel as to the proper principles of law to be applied.  There is no dispute that there must be strict compliance with each and every requirement under S. 208 of the Organic Law.  That is well established law.  See Biri v Ninkama [1982] PNGLR 342, Holloway v Ivarato [1988] PNGLR 99.  The failure of a petition in not strictly complying with the requisites under S. 208 of the Organic Law will be fatal to the Petitioner.  In such a case either the whole or any offending part of the petition will be dismissed.
The first ground of the challenge by the second and third respondents is that a witness to the petition has failed to adequately attest to the petition by describing his occupation as “villager”.  Thus it has been submitted that the petitioner has failed to adequately comply with S. 208 (d) of the Organic Law.
The law on this issue is quite trite.  A petition disputing the validity of an election must comply strictly with each and every requisite of S. 208 of the Organic Law.  See Delba Biri v Bill Ninkama [1982] PNGLR 324, Badui v Philemon [1992] PNGLR.  The respondents (in particular the second and third respondents) have argued that the term “villager” as used by the witness Yatu Alo to describe his occupation does not comply with the requirement of S. 208 (d).  It has been submitted that this is so because the term “villager” does not describe sufficiently what the witness does for a living.
Counsel for the Petitioner concede that the law is quite settled, in that an election petition must comply strictly with each and every element of S. 208 of the Organic Law.  In so far as this issue is concerned, he has submitted that the term “villager” was sufficient to describe the witness’s occupation.  He submits that, in any even it is a minor point, which is of no significance.  He submitted that the petition should not be struck out on this minor and insignifical point.  He relied on SCR NO. 14 of 1992, In the Application of Erova Agiwa [1993] PNGLR 136.
In that case, it was argued in the National Court that, the witness had failed to adequately attest to the petition by describing his occupation as “self employed” and therefore the petitioner had failed to comply with S. 208 of the Organic Law.
The National Court refused to strike out the petition.  The Applicant applied to the Supreme Court on that particular aspect.  The Court said the application was without merit.  The Court at p. 138 said:
“In our judgement, the application has not merit.  There is no dispute that there must be strict compliance with S. 208 of the Organic Law.  That is well established law: See SCR 4 of 1982 Biri v Ninkama [1982] PNGLR 342.  That principle is not being challenged.  The only issue is whether “self employed” is an adequate description of the occupation of a witness to a petition.  It is a very minor point which has nothing to do with the merits of the matter.”
I would adopt and apply the above passage to the present issue.  I am of the view that in this case the term, “villager” as used by a witness to describe his occupation is minor and insignificant point which has nothing to do with the merit of the petition.  I consider the application and submission to be frivolous and without substance.  I consider that the term “villager” is sufficient or adequate description of the occupation of the witness.  It follows that this submission is rejected.
The Petitioner has withdrawn the allegation of attempted bribery as set out in paragraph 2 of the petition.  Consequently, the allegations in that paragraph is dismissed.
I now deal with the respective submission in relation to non-compliance of S. 208 (a) of the Organic Law.  The respondents submit that the allegations contained in paragraphs 1.1 to 1.7 inclusive be struck out for failing to comply with the requirements of S. 208 (a) of the Organic Law.  They submit that relevant material facts have not been stated.  I will deal with individual paragraphs in the order that have been adopted by the parties in their respective written submissions.
The allegations in those paragraphs allege essentially the offence of undue influence, impersonation and double voting.  Undue influence, impersonation and double voting are all Criminal Offences: See S. 99, 100 and 102 of the Criminal Code Act, Ch. 262.  Section 102 reads:
“102.   UNDUE INFLUENCE
A person who:
(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:
(i)       in order to induce him to vote or refrain from voting at an election; or
(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 is guilty of a misdemeanour.
Penalty: A fine not exceeding K400.00 or imprisonment for a term not exceeding one year.”  (underlining is mine).
The offence was judicially considered in Re. Menyamya Open Electoral [1977] PNGLR 298.  The elements of the offence are set out in the judgement of Frost, CJ (as he then was) at p. 303.  His Honour said:
“It seems that the elements of s. 102 (a) are, first, that to be guilty of undue influence, so far as the sub-paragraph is relevant to this case, a person must be shown himself to have done or threatened to do any injury or to have caused or threatened to cause any detriment of any kind to an elector.  Second, it must be shown that the purpose was ‘in order to induce (an elector) to vote or refrain from voting at an election...’
Does this refer to the question whether the elector votes or does not vote or does it refer to the manner of voting?  As will be seen it is unnecessary for me to decide this point, but I am inclined to the view that an intention to influence the elector or vote in favour of a candidate or to refrain from voting against him, would fall within the section...
Turning to s.102 (b), what has to be shown, so far as is relevant, is that a person by fraud prevented or obstructed the free exercise of franchise by an elector, and it is quite clear in my opinion that fraud does include a false statement made by a person to an elector, known to be false or without belief in its truth or careless whether it be true or false, with the intention that the elector should act on it.”
Thus it can be seen that the section prohibits use of force or threats to electors in an election.  Whether those force or threats are made or used on an elector - defined as any person entitled to vote at any election - the corrupt practice are those aimed at those force or threats used or threatened to be used with the intention of interfering with the lawful process of an election.  The National Court Criminal Practice Rule 1987, set out the form for an indictment for undue influence.  In other words in those rules are set out the elements of undue influence is set out.  On p. 57, form number 59 draws out the element of the charge that need to be pleaded to constitute a valid indictment.
The respondents submit in essence that the petitioner must plead the precise and detailed facts.  In the present case they submit that that has not been done.
In my judgment because an election petition is a very serious matter, because of the serious charges and consequences that petitions entail, it is certainly necessary that any ground alleging a criminal offence must state all relevant material facts to establish such an offence.  That includes the necessity to spell out in clear and precise terms facts constituting the elements of the offence.
Thus, in my view, in the case of undue influence, as well as the specifics of  the particular allegation, such as names, numbers, dates, places there must be allegation that a particular or named person used force or threats on a named person; an elector.  In other words the pleading must not only include the specific allegations of undue influence, but must also go further and state the name of the person who used the force or threats and the name of the victim and state whether he or she is or was an elector.  The pleading must also state whether the action complained of was or were intended to influence the elector to vote in favour of a Candidate or to refrain from voting against him.
The Petition also alleges that the offences of impersonation and double voting were committed by the servants and or agents of the first respondent.  These offences are set out in ss. 99 and 100 of the Code.  These read as follows:
“99.    Personation
A person who votes or attempts to vote in the name of another person at an election, whether the name is that of a person living or dead or fictitious person, is guilty of a crime.
Penalty: Imprisonment for a term not exceeding two years.
100.    Double voting
A person who, being an elector, votes or attempts to vote at election more often than he is entitled to vote at the election is guilty of a crime.”
Turning to S. 99, what has to be shown or pleaded is that a named person voted or attempted to vote in the name of a particular person, at an election held on date at etc.  In other words, the petitioner must states these matters or facts quite precisely and clearly.
In so far as s. 100 is concerned, in my view the pleadings must state clearly that a person, being an elector entitled to vote, voted or attempted to vote (state number of times.)  The crucial element to be pleaded is that a person who is an elector, voted or attempted to vote and state the number of time that person voted or attempted to vote.  It is not sufficient to state a person named only.  In my view it is also not sufficient to plead in general terms the number of people who voted or attempted to vote.  The pleadings must state the name of the person or persons, whether he/she is an elector and the number of times that person voted or attempted to vote.  These are relevant material facts which must be stated.
Taking each of the allegations of undue influences, impersonation and double voting in turn, all fail to plead specific elements of these offences.
I now deal with each of the specific allegations, as set out in Paragraphs 1.1 to 1.7 inclusive of the Petition.  Paragraphs 1.1 and 1.2 state:
“1.1    On or about the 22nd of June 1997 at Katiloma Catholic Mission polling place, the agents or supporters of the First Respondent together with scrutineers of the Petitioner and other candidates in polling team of 70 with home-made guns, axes and sticks that the following errors, acts or omissions were allowed to be committed by the said Third Respondent’s servants and agents who were polling officials:
(a)      Voting more than once by a voter in favour of the First Respondent;
(b)      Voting under impersonation in favour of the First Respondent;
(c)      Allowing persons who were not of voting age to cast their votes in favour of the First Respondent; and
(d)      Forcing the Presiding officer to fill in remaining ballot papers.”
As a result of each acts or omissions committed by the First Respondent and or his agents or supporters, eligible voters were denied to exercise their constitutional right to vote for a candidate in a free genuine and fair elections for a candidate of their choice.
“1.2    On or about the 22nd day of June 1997, at Sakimapu Village polling area, the agents or supporters of the First Respondent directly or indirectly threatened eligible votes, agents or servants of the Second and Third Respondents together with scrutineers of the Petitioner and other candidates who were assigned on polling team 39 with home-made guns, axes and sticks with allowed the following errors, acts or omissions to be committed by the said Third Respondent’s servants and agents who were polling officials:
(a)      Voting more than once by a voter in favour of the First Respondent;
(b)      Voting under impersonation in favour of the First Respondent; and
(c)      Allowing persons who are not of voting age to cast their votes in favour of the First Respondent.”
I deal with these two grounds together because the grounds or allegations are similar.
As was submitted the petitioner has not stated or named the agents or supporters who were alleged to be agents or supporters of the First Respondent.  Further the allegation is that the threats were made against the agents or servants of the Electoral Commission.  It is not clear whether the servants or agents of the Electoral Commission were electors or not.  Further it failed to state clearly the names of those servants and or agents of the Electoral Commission.  Further more, the petitioner does not state clearly who was the elector who voted more than once, and who was the person(s) who voted under impersonation and in whose name the act of impersonation was committed.  The petitioner also does not state clearly the names of those under age voters and how many were involved.  It also fails to provide details in relation to 1.1 (d).  These grounds, i.e. the whole of the ground in paragraphs 1.1 & 1.2 must be dismissed.
Grounds 1.3 and 1.4.  I also deal with these paragraphs together because the allegations are similar.  These read as follows:
“1.3    On the polling date at Sakimapu polling booth, the agents or supporters of the First Respondent wilfully grabbed and destroyed a ballot paper from an elderly woman who voted for the Petitioner or other candidates of her choice.
1.4     On the polling date Sakimapu, the agents or supporters of the First Respondent also grabbed and wilfully destroyed a ballot paper marked by a young lady in favour of the Petitioner or a candidate of her choice.”
The allegations do not state clearly who the agents or servants were and how many were involved.  The allegations also do not state clearly who was the old woman or who the young woman was.  These grounds are struck out.
Ground 1.5.  This reads:
“1.5    On or about the 22nd day of June 1997, the agents or supporters of the First Respondent threatened the agents or servants of the Second and Third Respondents who were polling officials with home-made guns, axes and sticks that extra ballot papers were signed and filled in favour of the First Respondent.  As a result of those illegal practices, the actual votes casted does not correspond with the actual figures of eligible voters registered on the Common Roll.”
Place of Poll and Polling Team Number	Registered No. of Eligible Voters on the Common Roll	Actual No. of Votes Casted	Extra Votes	
Katiloma - 1970	540	545	5	
Sakimapu - 1939	719	724	5	
Once again this ground must also be dismissed.  It has not pleaded who the agents or supporters are, and whether the First Respondent is an elector.  It does not state by name who the agents or servants the Electoral Commission and whether they were electors.
Ground 1.6.  It reads:
“1.6    On or about the 22nd day of June 1997 at Sakimapu polling area, the agents or supporters of the First Respondent executed the threats by assaulting and wounding a lawfully appointed scrutineer of the Petitioner herein this petition namely Wanpis Rambue and such further threats were also imposed on the agents or servants of other candidates.”
This ground must also be dismissed.  It has not stated who was the person or person who made the threats or also does not state whether Wanpis Rambue was an elector.
Ground 1.7.  This ground reads:
“1.7    On or about 22nd June 1997 near Katiloma Community School, the supporters or agents of the First Respondent armed with home-made guns, axes and sticks by threat and force took away from the First and Second Respondents’ or their servants and agents who were assigned or designated and were on their way to conduct polling at Wakipuanda which is about 3km away from Katiloma polling area, a scheduled and gazetted place of polling on the scheduled date under team 40.  And a ballot box numbered 1940, together with about 366 or more ballot papers were taken to Katiloma polling area by the agent or servants with such threats and force ordered and directed them to open a polling booth and conduct polling at Katiloma about 300 metres away from the polling booth presided by team 70.  The agents or supporters were forced to open and conduct another polling under those circumstances.”
As a result of such acts or omissions committed by the supporters or agents of the First Respondent:
(a)      About 172 eligible voters, from Wakipuanda polling area who would have casted their votes to the petitioner or a candidate of their choice where completely denied to exercise their constitutional rights to vote in a genuine, free and fair elections for a candidate of their choice.
(b)      A total of 140, eligible voters were allowed to cast their votes in favour of the First Respondent.
(c)      A total of 27 voters were allowed to cast their votes twice in favour of the First Respondent, that the votes casted under such circumstances doubled up to 54 votes.  As a result of that, the total number of votes contained in box number 1940 is 248.
As a result of such or omissions committed by the agents or supporters of the First respondent, about 200 eligible voters of Wakipuanda who were registered on the 1997 common roll and prepared to vote that day were denied to exercise their constitutional right to vote at a free, genuine and fair elections for a candidate of their choice.
This paragraph to is too vague.  It is not specific.  It has not pleaded clearly by name who the agents and supporters of the First Respondent are and whether the First Respondent is an elector.  Also it does not state clearly by name who the servants and agents of the Electoral Commission and whether they are electors.  It has also not been pleaded specifically the element of intention to influence any of the eligible electors.  For these reasons the whole of this paragraph is dismissed.
The final ground in the Petition is set out in the whole of paragraph 3.  It alleges various acts, errors or omissions allegedly committed by the electoral officials.
I propose to deal with grounds 3.1 and 3.2 together as they deal with the same issues of the rights of an eligible elector to vote and to the issue of validity of elections.
Paragraph 3 essentially raises the allegations of errors and or omissions alleged to have been committed by the Second and Third Respondents.  The Petitioner pleaded that due to either inadequate or no security about 13 or more ballot boxes together with an unknown number of ballot papers in those boxes were stolen.
The essence of the allegations is that because of either lack or inadequate security measures provided by officials; they were thus negligent in the discharge of the duties, resulting some unknown person stealing the ballot boxes and the ballot papers.
In paragraph 3.2 of the Petition, the allegation is that because the 3rd Respondent did not provide security or transport to its own servants and staff to conduct polling, about 867 eligible voters did not vote.
It has been submitted on behalf of the respondents that these grounds be struck out on the basis that it is not for the candidate to claim the rights of this unspecified and unnamed eligible voters the right to vote, but it is for those unnamed eligible voter who were denied the right to claim that right and make an application for the enforcement of that right.
The Petitioner on the other hand says that the right to vote is a Constitutional right.  The pleadings as they have been set out in those paragraphs show clearly the facts relied.  The petitioner says that because of the acts and omissions complained of and as pleaded are specific, clear and unambiguous.
It has been submitted that the acts and or omissions of the servants and or agents of the Electoral Commission affected the rights of eligible voters to vote for a candidate of their own choice, including the petitioner and the first respondent.  The right to vote is a Constitutional right.  See s. 50. of Constitution.
In Kandep Tindiwi Malapa v The Electoral Commission, and Jimson Papki Sauk Mark Wasum v The Electoral Commission, [1987] PNGLR 128.  Kapi, DCJ said at p. 133:
“The right to vote is exercised when a person casts his vote.  The manner in which that vote is cast and how it is counted towards the election of a member is regulated by the Organic Law on National Elections (Ch. No. 1), a law which is authorised by s. 50(2) of the Constitution.  A person who does anything, or anything that is done which prevents the vote cast by a person from being counted contrary to the law, ultimately affects the right to vote.”
I would adopt these principles as quite correct.  However, I would add that a person who does anything to prevent an eligible elector to cast his or her vote contrary to law, ultimately affects that person’s right to vote.
In the present case, I consider that the facts as pleaded show clearly and distinctly the facts.  The facts as they have pleaded are in my view sufficient, material and relevant.  The allegations are quite specific as to the omissions committed by the Second and Third Respondents.  The facts as pleaded clearly highlight the issue.  The truth or otherwise of the allegation can only be determined at the trial proper.  These grounds must therefore remain.  Consequently, the application to struck out these paragraphs are rejected.
In so far as grounds 3.3, 3.4, 3.5 and 3.6 are concerned, I accept the submission advanced by the respondents.  The pleadings are too general and I order that these be struck out.
CONCLUSION
The end result of this ruling is that the allegation set out in paragraphs 1.1 to 1.7 inclusive, and paragraphs 3.3 to 3.6 inclusive of the Petition are dismissed for failing to comply with s. 208 (a) of the OLNE.  Paragraph 2 of the Petition is dismissed as it has been withdrawn by the Petitioner.
Paragraphs 3.1 and 3.2 are to remain on foot and be tried.
Lawyer for the Petitioner: Kari & Co Lawyers
Lawyer for the 1st Respondent: Warner Shand Lawyers
Lawyer for the 2nd & 3rd Respondent: Maladinas Lawyers