Unreported National Court Decisions
N1701
PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]
EP NO. 74 OF 1997
IN THE MATTER OF THE ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTION
IN THE MATTER OF THE DISPUTED RETURN IN THE ENGA PROVINCIAL ELECTORATE
BETWEEN: DAVID LAMBU
PETITIONER
AND: PETER IPATAS
FIRST RESPONDENT
AND: EDWARD KONU (THE PROVINCIAL RETURNING OFFICER)
SECOND RESPONDENT
AND: THE ELECTORAL COMMISSION
THIRD RESPONDENT
Waigani
Sakora J
21 October 1997
14 November 1997
19 November 1997
ELECTION - Parliamentary - Petition disputing election and return - Allegations of errors, omissions and illegal practices - Voiding of election and calling of by-election - Remedies under the Organic Law on National and Local-level Government Elections - Constitution, ss. 50, 57, 103 and 135 - Organic Law, ss. 4, 206, 208, 215, 218, 228 and 231 - Criminal Code, ss. 102 and 103.
ELECTION - Parliamentary - Petition disputing election and return - Challenge to nomination - Holding of multiple public offices - Constitution, ss. 50, 57, 103 and 135 - Organic Law, ss. 4, 206, 208, 215, 218, 228 and 231 - Criminal Code, ss. 102 and 103.
Cases Cited
In re Menyamya Open Parliamentary Election, Neville Bourne -V- Manasseh Voeto [1977] PNGLR 298.
In re Koroba -v- Lake Kopiago Open Parliamentary Election, Andrew Wabiria -v- Payale Elo [1977] PNGLR 328.
In re Moresby North West Parliamentary Election, Gavera Rea -v- Mahuru Rarua Rarua [1977] PNGLR 338.
In re Manus Provincial Parliamentary Election, Arnold Marsipal -v- Michael Pondros [1977] PNGLR 354.
In re Moresby North East Parliamentary Election (No.1) Goasa Damena -v- Patterson Lowa [1977] PNGLR 424.
In re Moresby North East Election Petition, Patterson Lowa -v- Goasa Damena [1977] PNGLR 429.
In re Baiyer-Mul Open Parliamentary Election, Mokwa Mamando -v- Pyange Ni [1977] PNGLR 497.
Dixon Daduwe -v- Joe Area, The Electoral Commission and Mark Marea 1978.
Isilowa -v- Biaguni 1980.
Nakop Ipe -v- Mana Napas [1981] 128.
Delba Biri -v- Bill Ninkama [1982] PNGLR 342.
Jababa -v- Okuk [1983] PNGLR 69.
In the Matter of Disputed Returns Unggai-Bena Open Electorate, Masive -v- Okuk [1985] PNGLR 105.
Kevin Masive -v- Iambakey Okuk and Johannes Kenderop [1985] PNGLR 263(SC).
Philip Bouraga -v- Hugo Berghuser [1987] PNGLR 381.
Torato -v- Balakau [1988-1989] PNGLR
Holloway -v- Ivarato [1988] PNGLR 99.
Paua -v- Ngale [1992] PNGLR 563.
Agonia -v- Karo [1992] PNGLR 463.
Ludger Mond -v- Ben Okoro [1992] PNGLR 501.
In the Matter of a Disputed Return Moresby South Open Electorate, Lady Carol Kidu -v- Albert Karo, Unreported N1626, October 1997.
Crouch -v- Ozanne (1910) 12CLR 539.
Sykes -v- Australian Electoral Commission (1993) 67 ALJR 714-720 (HC).
Pavlikovich-Smith -v- Australian Electoral Commission (1993) 67 ALJR 711-713 (HC).
Hudson -v- Lee (1993) 67 ALJR 720-722.
Counsel
Petitioner in person
Mr Garo for the 1st Respondent
Mr Kubak for the 2nd and 3rd Respondents
DECISION
19 November 1997
SAKORA J: The petitioner and the first respondent were among a total of 20 candidates for the Enga Provincial seat in the 1997 national elections. The declaration of 6 July 1997, according to the figures used in the petition, gave the first respondent total votes of 50,607, and his nearest rival 23,979 votes. It is noted that the petitioner does not state the votes he himself polled and how he fared in relation to the other 19 candidates. These figures have not been disputed here, though no official records of the election and its return have been put before the court by any of the parties. But subsequent to the preliminary proceedings here, the court has had independent access to the records through the tender of a document titled: 1997 National Parliament General Election Result, of July 1997 issued by the Electoral Commissioner, in relation to another election petition I have been concerned with.
I see no legal barrier to having access to the official records contained in the abovementioned document to check on the figures given in this case, as the parties failed to assist me in this respect. And these official records (at page 30) confirm that a total of 20 candidates contested the election in this constituency. The declared results reveal the following:
1st Respondent: 50,806 (26.67%) - winner
Nearest Rival: 24,913 (13.08%)
Petitioner: 3,096 ( 1.63% )- 12th
The petition, the subject of these preliminary applications by the respondents, contains three principal allegations of what is generally termed: “errors, ommissions (sic), improper or illegal practices committed by the respondents individually and or (sic), jointly” (para.4). These are then set out under what are intended to be four separate heads of allegations (paras. 5, 6, 7 and 8). However, paragraphs 5 and 6 deal with the same subject- matter, that of nominating whilst holding other “elective public offices”, which, it is alleged, constituted the commission of errors and omissions, on his (the first respondent’s) part. And this particular allegation is revisited under paragraph (8), where it is alleged, this time, against the second and third respondents (para. 8(a)).
Under paragraph (7), the petitioner alleges that the first respondent “unduly influenced, bribed, or attempted to bribe the electors by using his position as Governor of Enga Province to use government moneys and facilities, the details of which are particularized here-under (sic)”. A total of 17 instances are then alleged. Paragraph (8) of the petition alleges what is termed: “guilty of not conducting the election properly” against the second and third respondents. One of the 8 allegations under this paragraph is in relation to the “nomination” (sub-para.(a)), which they are alleged to have failed to “reject” that of the first respondent.
Paragraph (9) of the petition lists a total of 10 remedies as being the reliefs the petitioner is entitled to be granted as a consequence of his petition. The first 7 seek declarations (the last of which seeks declaration that the election of the first respondent is null and void), whilst the next remedy sought is an order for a by-election in the electorate. And the next two are for orders in relation to costs, including what is termed: “refunding of all the petitioner’s election expenses ...”. Just for good measure, the usual general remedial powers of a court of law in ordinary litigation is attached at the end of the paragraph: “Any other such declarations or orders deems (sic) just and fit”.
The combined challenge of the three respondents as put before the court through their respective written submissions as well as the oral submissions of both Mr Garo and Mr Kubak of counsel is two-fold:
1.       There is no law preventing the first respondent from nominating as he did.
2.       There has been non-compliance with the mandatory requirements of the Organic Law.
Now, dealing with each of the three principal heads of allegations in turn.
PARAGRAPHS 5 AND 6: NOMINATION
The first point that has to be made here is that the petition alleges the nomination as “errors, ommissions (sic)”, firstly, on the part of the first respondent himself (paras. 5 and 6) and, secondly, as being committed by the second and third respondents “either jointly or severally ...”, when they are alleged to have “failed to reject the 1st respondent’s purported nomination...”. The second point that has to be made is that, if what is alleged here is (or are) indeed errors and omissions envisaged by the Organic Law on National and Local-level Government Elections (thereinafter, Organic Law), which I think not, then the petitioner has not claimed how these, if at all, affected or were likely to affect the result of the election: see cases on official irregularities such as Re Manus Provincial Parliamentary Election, Arnold Marsipal -v- Michael Pondros (1977); In Re Moresby North West Parliamentary Election, Gavera Rea -V- Mahuru Rarua Rarua (1977); In Re Baiyer-Mul Open Parliamentary Election, Mokwa Mamando -v- Pyange Ni (1977); Isilowa -V- Biaguni (1980); Torato -v- Balakau (1988-1989); and Paua -v- Ngale (1992).
Allegations of official irregularities in the conduct of an election and its return, based on errors and/or omissions, to ground a petition to dispute the election and return are usually levelled at electoral officials such as presiding officers, returning officers or assistant returning officers. Thus, by the very nature of these allegations only electoral officials can be properly said to have committed these irregularities.
Another issue to be considered here is the question whether or not a challenge to the nomination of a candidate for election, in the way the petitioner does here, after the election and return, is or can be a ground for petition under the Organic Law? And what the petitioner seems to be doing here (under paragraphs 5 and 6) is to offer the allegations about the nomination of the first respondent as both a ground for disqualification from standing for elective public office (membership of the National Parliament) and an electoral offence described as errors and omissions.
Section 103 Constitution makes detailed provisions about qualifications for and disqualifications from membership of the National Parliament. It is instructive to set this provision out in full hereunder:
103.    Qualifications for and Disqualifications from Membership
1.       A member of the Parliament must be not less than 25 years of age.
2.       A candidate for election to the Parliament must have been born in the electorate for which he intends to nominate or have resided in the electorate for continuous period of two years immediately preceding his nomination or for a period of 5 years at any time and must pay a nomination fee of K1,000.00.
3.       A person is not qualified to be, or to remain, a member of the Parliament if:
(a)      he is not entitled to vote in elections to the Parliament; and
(b)      he is of unsound mind within the meaning of any law relating to the protection of persons and property of persons of unsound mind; or
(c)      subject to Subsections (4) to (7), he is under sentence of death or imprisonment for a period of more than nine months; or
(d)      he is otherwise disqualified under this Constitution.
Subsections (4) to (7) need not be set out in full here. They make provisions for the effect of statutory appeals and pardons on convictions and sentences.
Subsection (3)(d)(supra) would envisage disqualification pursuant to the recommendation for dismissal from office following an investigation into allegations of misconduct in office by the Leadership Tribunal under the Organic Law on the Duties and Responsibilities of Leadership[s.27 (4) and (5)]. There are, however, other circumstances not stipulated in the Constitution that would affect the qualification of a person to be a member of Parliament, those requirements of the Organic Law that can collectively be described as “nomination” requirements or procedures: ss.83-89 (Part XI). But these are not matters of qualification.
Since the first national elections under the Independence Constitution (1977), challenges to elections and their returns based on allegations of disqualifications have been only in respect of the age and residential requirements (as far as my quick research could ascertain): s.103(1) and (2) Constitution respectively. Such decided cases as the following are pertinent:
*        In re Moresby North East Parliamentary Election, Goasa Damena -v- Patterson Lowa (1977).
*        Dixon Daduwe -v- Joe Area, The Electoral Commission and Mark Mareo (Election to a Provincial Assembly) (1978).
*        In the Matter of the Disputed Returns for Unggai-Bena Open Electorate, Kevin Masive -v- Okuk and Kenderop (1985)
*        Philip Bouraga -v- Hugo Berghuser (1987).
It is noted that the challenge to the election and return in these cases on the ground that the winning candidate lacked the necessary qualification (stipulated by s.103(1) and (2) Constitution) was dealt with as a threshold preliminary issue at the substantive hearing of the election petition in question. And this was approved and ordered by two separate Supreme Courts when confirming the jurisdiction of the National Court to determine a person’s qualifications to stand as a candidate in an election to the National Parliament.
The first of these cases was that of In re Moresby North East Election Petition, Patterson Lowa -v- Goasa Damena [1997] PNGLR 429, which went to the Supreme Court on appeal against the decision of the National Court sitting as a Court of Disputed Returns. The Court had exercised jurisdiction and ruled on a preliminary objection, that the petitioner was entitled to rely on a lack of qualification in the respondent. The appeal was dismissed and the case remitted to the National Court to be continued to be heard as an election petition.
The second case was that of Kevin Masive -v- Iambakey Okuk and Johannes Kenderop [1985] PNGLR 263, which went to the Supreme Court as a reference by a National Court judge pursuant to s.18(2) Constitution. The question for answer was:
Once nominations have been declared under s.92 of the Organic Law on National Elections but before commencement of the polling period, does the National Court have jurisdiction to entertain an application by a candidate questioning the qualification of another candidate?
Five judges constituted this Supreme Court. In three separate judgements [Kidu CJ., Pratt and Bredmeyer JJ (with whom Woods J concurred), and Amet J (as he then was), which very usefully and in an exhaustive way canvassed the pertinent provisions of the Constitution and the Organic Law on this subject, the Court unanimously answered the question in the affirmative.
Time and present purposes unfortunately do not permit a closer and detailed look at how those various provisions were treated by the different members of the Court. Suffice to note, however, that their Honours agreed that the jurisdiction of the National Court in determining a challenge to the qualification of a person to nominate as a candidate for election and be elected as a member of Parliament was vested by both s.135 Constitution and s.206 Organic Law. The former is in the following terms:
135.    Questions as to Membership, etc. The National Court has jurisdiction to determine any question as to:
(a)      the qualifications of a person to be or to remain a member of the Parliament; or
(b)      the validity of an election to the Parliament.
As Chief Justice Kidu concluded, s.135 confers three very distinct jurisdictions on the National Court (p.265):
(a)      determination of any question as to a person’s qualifications to be a member of the Parliament; and
(b)      determination of any question as to a person’s qualifications to remain a member of the Parliament; and
(c)      determination of any question as to the validity of an election to the Parliament.
And the qualifications for and disqualifications from membership of the National Parliament are set out under s.103 Constitution (supra). Section 103 (1) and (2) read in conjunction with s.135 (supra) and s.206 Organic Law would envisage, from the discussions of their Honours, two distinct situations calling for exercise of jurisdiction by the National Court: firstly, question of qualifications “to become” a member invoking the jurisdiction before commencement of the polling period [s.135 (a) Constitution], and, secondly, questions as to qualification(s) to remain a member, and, as to the validity of an election [jurisdictions (b) and (c) (supra)] are what his Honour Kidu CJ termed “post election” situations (during and after polling), thus invoking the jurisdiction of the court under s.206 Organic Law. 
I would respectfully agree with the learned former Chief Justice that the Organic Law makes no provision for the determination of any question as to a person’s qualification(s) to be a member of the Parliament, and that, therefore, the machinery for invoking this jurisdiction must be found outside the Organic Law (supra, 266). I also respectfully agree with the analysis of s.135(a) and (b) Constitution by their Honours Pratt and Bredmeyer JJ, and their conclusion, emphasising the two distinct jurisdictions (or sources of):
The answer can only be that s.135(a) envisages the possibility of a challenge to qualifications before the election has run its course... Action under the first part of s.135(a) is more likely to be expected and to be taken before any declaration of a poll whereas action concerning whether or not a person can remain a member clearly must take place after election to the House has been declared, and it may or may not be involved with election procedures (supra, 270). (underlinings mine)
Their Honours go on to restate what their Honours Kidu CJ and Andrew J said (at 71) in the case of Jababa -v- Okuk [1983] PNGLR 69, which was that:
...an election petition is appropriate to dispute the validity of an          election return (that is, of a completed election) but is not appropriate to question the validity of an enrolment or nomination for a forthcoming election (supra, 270).
His Honour Pratt J, three months earlier in Masive -v- Okuk and Kenderop [1985] PNGLR 105, had suggested that the application for a declaration that the respondent was not qualified was inappropriate, and that applying by way of a writ of summons or by an application for judicial review was more appropriate (supra, 271). And his Honour was talking about a challenge mounted before commencement of polling. Challenge after polling and declaration had to be by petition under s.206.
Similar sentiments were expressed by his Honour Amet J (as he then was) in reaching the same affirmative answer to the question on reference. I respectfully adopt them here (where he said):
It becomes overwhelmingly clear, in my opinion, when s.135(a) and (b) are read with s.103(1), (2) and (3), and with s.206 of the Organic Law, that the qualification spoken of by s.103 are grounds which do not have to do with the process and procedures of nominations, campaigning, voting, counting of votes, declaration of the election results and the like. Grounds under s.103 are absolute, they do not depend upon the ultimate results of the election, the notion of “real justice”, “substantial merits and good conscience of each case” (supra, 273). (underlinings mine)
His Honour went on to add that, contrasted with questions of qualifications [under ss.103(1) and (2) and 135 (a)], other grounds that could lead to challenging the validity of an election and its return, such as bribery, undue influence and other illegal practices (under s.215 Organic Law) were matters that did not concern disqualifications (supra, 273). This was emphasised by the learned judge in the following statement:
It is abundantly clear to me that the Constitution has treated grounds of disqualification as distinct from other grounds upon which the validity of an election may be challenged. They are threshold issues which are permitted to be resolved prior to the completion of the election process (supra, 274). (underlinings mine)
I would respectfully agree with the learned former Chief Justice and his Honour Amet J (as he was then) in their forging a nexus between the question of qualification(s) to be a member of Parliament and the s.50 Constitution right to stand for elective public office, and suggesting there that (outside of the Organic Law):
An applicant could apply to the court under the Constitution, s.57, for enforcement of his right under s.50 to stand for election without the handicap of opposition from an unqualified opponent (supra, 271).
In the end we have to come back to the very fact that the petitioner’s purported Organic Law challenge to the nomination (alleging, as he does, “errors, ommissions (sic)...”) does not ground his challenge on either of the stipulated factors of qualification [s.103(1) and (2) Constitution]. Nor does he ground his purported challenge on any of the stipulated factors of disqualification [s.103(3)(a) to (d) Constitution]. 
Finally, no law, either in the Constitution itself or the Organic Law stipulates, and defines, the holding of multiple elective public offices, in the way the petitioner alleges here, as a factor of disqualification from becoming or remaining as a member of Parliament. This conclusion is reached even with the court’s acknowledgement of provisions such as the following (which I do not feel need discussion for our present purposes):
*        s.4 Organic Law - Reference of certain questions to the National Court.
*        s.228 Organic Law - Reference of Question of Qualification or Vacancy (by Parliament by resolution to the National Court.)
*        s.231 Organic Law - Powers of Court (following reference).
I, therefore, strike the allegations contained in paragraphs (5) and (6), and in paragraph (8)(a) of the petition.
Before proceeding to discuss the remaining allegations, it would be both convenient and instructive to re-state the law on the prerequisites of an election petition. 
The jurisdiction of the National Court in respect of electoral matters is derived from or vested by two sources: the Constitution and the Organic Law. The National Court, an integral part of the National Judicial System [s.155(1)(b) Constitution] has its jurisdiction provided for under s.166(ibid) in the following manner (the pertinent parts):
166.    Jurisdiction of the National Court
(1)      Subject to this Constitution, the National Court is a court of unlimited jurisdiction.
(2)      In particular, the National Court has the jurisdiction set out in:
(a)      Section 22 (enforcement of the Constitution); and
(b)      Subdivision 111.3 (enforcement); and
(c)      Section 155 (the National Judicial System), and otherwise as provided by this Constitution or any other law.
(3)      .............
(4)      ..............
(5)      ..............
And the Constitution vests that special jurisdiction under s.135 (supra) over questions as to membership of the Parliament. Then there are those matters that are covered under s.155(3)(a) and (b), (4) and (5). One of the matters envisaged by the latter part of s.166(2)(c) is, of course, the Organic Law, which covers the subject of elections and challenges thereto in an exhaustive way. The laws stated there have their origin in the Australian electoral laws:  Commonwealth Electoral Act 1918 (as amended).
Section 206 Organic Law provides the only avenue for disputing an election and its return. It is in the following terms:
206.    Method of Disputing Returns
The validity of an election or return may be disputed by the petition addressed to the National Court and not otherwise.
The prerequisites of a valid challenge to the election and/or its return are set out under s.208. And these are as follows:
208:    Requisites of Petition
A petition shall:
(a)      set out the facts relied on to invalidate the election or return; and
(b)      specify the relief to which the petitioner claims to be entitled; and
(c)      be signed by a candidate at the election in dispute or by a person who was qualified to vote at the election; and
(d)      be attested by two witnesses whose occupations and addresses are stated; and
(e)      be filed in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after declaration of the result of the election in accordance with s.175(1)(a).
By way of an interesting comparison the Australian legislation is in the following terms under s.355:
(a)      set out the facts relied on to invalidate the election or return.
(b)      subject to subsection 358(2), set out those facts with sufficient particularity to identify the specific matter or matters on which the petitioner relies as justifying the grant of relief.
In the 1993 Australian Federal election case of Sykes -v- Australian Electoral Commission, Dawson J of the High Court said this (at 217) about s.355:
What is clear, however, is that the facts which par (a) requires to be set out must not only be the essential facts relied on but must also be sufficient to justify a finding of invalidity. (underlining mine)
His Honour was repeating the same sentiments from another election dispute case the same year: Pavlekovich-Smith -v- Australian Electoral Commission, where he said (at 712):
What is required by s.355(a) is that the petition should allege sufficient material or essential facts to justify an order invalidating the election or return. (underlining mine)
What are “facts” in our s.208(a) was determined by the Supreme Court in Holloway -v- Ivarato (1988) where Kapi DCJ (with whom Los and Hinchliffe JJ concurred) said this (at 101):
The facts which must be set out under s.208(a) of the Organic Law are material or relevant facts which would constitute a ground or grounds upon which an election or return may be invalidated.
A little later on the learned Deputy Chief Justice added (ibid):
I conclude that s.208(a) only requires pleading of material or relevant facts which would constitute a ground and not the evidence by which those facts are to be proved. (underlining mine)
I myself had the opportunity to consider the provision and the above decision in Ludger Mond -v- Ben Okoro (1992) where I said the following:
It should be noted that the provision does not say “particulars” of facts nor “evidence” of the facts. It merely says “facts”. These terms do not connote special meanings here. In their ordinary everyday use “particulars” means details or detailed accounts, “facts” means occurrence of events or things ......
The mandatory nature of the requisites under s.208 was emphasised in Delba Biri -v- Ninkama (1982) (at 346) that an:
electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to s.206 ... must strictly comply with each and every requirement of s.208 of that law.
The matter is of course put beyond doubt by what s.210 Organic Law says:
210.    No Proceedings unless Requisites Complied With
Proceedings shall not be heard on a petition unless the requirements of Sections 208 and 209 are complied with.
Somewhat similar provision appears under s.358 of the Australian legislation, which reads:
(1)      Subject to subsection (2), no proceedings shall be had on the petition unless the requirements of ss. 355, 356 and 357 are complied with.
(2)      The Court may, at any time after the filing of a petition and on such terms (if any) as it thinks fit, relieve the petitioner wholly or in part from compliance with para. 355(aa).
(3)      ...........
Finally I wish to note that, as well as being assisted by what the learned High Court judge has said in the two Australian election cases referred to here (supra), I have been greatly assisted also by the statement of the law on the subject by her Honour Gaudron J in another High Court election petition: Hudson -v- Lee (1993). Considering s.362 of the Commonwealth Electoral Act 1918 which makes provision for the powers of the Court of Disputed Returns with respect to allegations of bribery or corruption, illegal practice, and undue influence, her Honour held that the provision (in somewhat similar terms to our s.215 Organic Law) provides exhaustively as to the grounds on which an election may be invalidated or declared void, because (as with our Organic Law):
(i)       the Act makes detailed and comprehensive provision as to the conduct of elections;
(ii)      the Act allows for elections and returns to be disputed on the ground of “illegal practice” as defined; and
(iii)     the section provides precisely as to the manner in which the power to declare an election invalid or void is to be exercised depending on the precise nature of the finding.
Thus, her Honour held, “a petition asserting a ground not amounting to bribery or corruption, undue influence or illegal practice as defined, asserts no ground on which an election can be declared invalid or void” (headnotes).
PARAGRAPH 7: BRIBERY AND UNDUE INFLUENCE
This principal head of allegations lists what the petitioner contends are 17 separate incidents or instances of bribery and undue influence (or attempts at) committed by the first respondent himself [sub-paras. (a) to (k) inclusive, (m) and (n)] and by his servants and agents [sub-paras. (l), (o), (p) and (q)].
Now, dealing with each of these 17 separate incidents in turn.
Paragraph 7(a)
The incident alleged here is said to involve a gathering of some 3,000 electors being told by the first respondent to vote for him as his          government was paying their children’s school fees. He is alleged also to have promised to pay K5,000 more to a named Youth Group for their projects. It is alleged further that he threatened to withdraw those services or withhold further services if votes were not cast for him. Finally he is alleged to have told “the electors” not to vote for     other candidates who had gone for the elections from Port Moresby.
The respondents contend that what is alleged here does not comply with the mandatory requirement of s.208(a) Organic Law, and, in the way the decision in Agonia -v- Karo (1992) insists when election offences of bribery and undue influence are alleged:
In the case of bribery, as well as the specifics of the particular allegations such as names, numbers, dates, places there must be an allegation that this money, that property, or that gift was offered by the successful candidate and that the reason that it was given or         offered was to get a named person to vote or not to vote or to interfere unlawfully as the case may be, in the free voting of an election (supra, 470).
Whilst the place or locality of the alleged incident is stated/named, there is no indication as to when this took place. Nor are names of eligible voters given as being those who were bribed or attempted to be bribed. Similarly, if the allegation is one of undue influence (an offence also under s.102 Criminal Code).
Moreover, no details as to the alleged payment of school fees are pleaded here. I agree that the address before some 3,000 electors was a typical political campaign speech that ought to be distinguished from electoral offences (which also are criminal offences) such as bribery and undue influence ss.103 and 102 respectively. As a campaign speech (or recitation of) this sub-paragraph fails to plead with definition and clarity all the material facts, as would be required in an indictment containing counts of bribery or undue influence.
The allegations here do not also demonstrate an intention on the part of the first respondent to influence the decision of an identifiable number of named eligible voters, out of the 3,000 people there (or each and every one of them) in relation to the free exercise of their franchise.
I, therefore, uphold the respondents’ application and strike out this allegation as not pleading the constituent elements of the offences of bribery and undue influence, and thereby, not complying with the strict requirements of s.208(a) Organic Law.
Paragraph 7(b)
Similarly to [sub-para. (a)], whilst the place or location is named/pleaded, the date of the alleged incident is not pleaded. No names of an identifiable number of eligible voters is pleaded from some 4,000 electors. Nor is there any specification as to whose children’s school fees were said to have been paid, and how much. No statement of intention to bribe is pleaded here also.
Thus, the constituent elements of the offence of bribery (and of undue influence, if that is indeed alleged) are not pleaded here, in compliance with the mandatory requirement of s.208(a) Organic Law, and as Agonia -v- Karo (supra) insists.
I, therefore, grant the application and strike out the allegations here.
Paragraph 7(c)
Similar, initial, allegations are made here in respect of school fees, and the sub-paragraph proceeds to talk about “a considerable number of government cheques to various institutions and groups purposely to buy votes”.
The generality and the consequent uncertainty or lack of specificity is quite obvious on the face of this sub-paragraph. In any case, no specific allegation of wrong-doing, whatever that may be, has been alleged here.
For the same reasons as in the preceding situation (non-compliance with s.208(a) requirement), I grant the application of the respondents. This sub-paragraph is struck out.
Paragraph 7(d)
Similarly, no date is nominated for the alleged incident. The recipients of the cheque (since the cheque could not have been handed over to an inanimate object such as an Aid-Post, unless, of course, it were just dropped there) are not named. And the cheque is described as “a cheque of about K4,000.00” (my underlining). The fellow Councillor is not named either. Nor are the eligible voters targetted here.
Once again the allegation here is one of generality and lacking in specificity, defeating the purpose of s.208(a) Organic Law, which is to give proper notice of the allegations (through the pleading of material facts) so the other parties will be able to properly answer the allegations, as well as alerting the court to the real issues to come before it.
The application is granted, and the allegation (of whatever) is struck out for the same reasons as in the preceding situations.
Paragraph 7(e)
Similar situation, once again, here. No date of the alleged incident is pleaded.  No indication or statement as to whether or not, all or any number, of the assembled 500 people were eligible voters. Nor are any named persons alleged to be bribed or unduly influenced (or attempts at) pleaded here.
There is also no pleading of a statement of intent to bribe, as required (supra).
The application is granted, and the purported allegations here are struck out.
Paragraph 7(f)
I agree with the respondents that, once again, the constituent elements of the offences of bribery and undue influence are not pleaded here, as required. The date of the alleged incident is not specified, nor the amount(s) of the school fees. Similarly, persons who are alleged to have been bribed or unduly influenced are not pleaded by naming and giving them an identifiable number.
Additionally, a statement of an intention to bribe is not pleaded. Nor is it pleaded that an identifiable number of people addressed, in the alleged way, were eligible voters. 
The application is granted. This sub-paragraph is struck out.
Paragraph 7(g)
The allegation has to be set out in full hereunder to demonstrate why a provision such as s.208(a) Organic Law becomes all the more necessary:
(g)      At Laiagam High School, he more or less told the parents and students the same things as pleaded in the preceding sub-paragraph save for the threat of withdrawing the truck. (underlining mine)
There are no adequate material facts pleaded here. Who were the parents and students alleged to have been told “the same thing...”, and how many of them? When was it that this alleged incident took place? What does “more or less” mean here? Did the first respondent tell what he is alleged, or did he not?
This sub-paragraph must suffer the same fate as the preceding allegations. The application of the respondents is granted, and the purported allegation is struck out for the same reasons.
Paragraph 7(h)
There are no material facts pleaded here to satisfy the mandatory requirement. The date of the occurrence of the alleged incident is not pleaded, as required. The recipient of the cheque is not named/pleaded: “...he handed a cheque of some K46,000-00 to the school in the presence of students, staff and the members of the local community...” is not good enough! (my underlining). It is not pleaded here that those who received and witnessed the receipt (of the cheque) were indeed eligible voters.
Similar fate must visit the allegation here. This sub-paragraph is struck out of the petition for the same reasons.
Paragraph 7(i)
No material facts such as the exact date and location of the alleged incident, nor to whom exactly were these promises made have been pleaded here as required. Nor is it pleaded that an identifiable number of the gathered assembly were eligible voters (who were likely to be affected or influenced by what he did or said).
For one thing, to say: “At Tsak Valley, ...” is not good enough. I grant the respondents’ application and strike out this sub-paragraph.
Paragraph (j)
Similar situation of absence of proper pleading of material facts is demonstrated here. No date of the alleged incident is given. Which members of the tribe, and how many of them were given, and how much was given to each, have been pleaded as required.
The allegations here are struck out.
Paragraph 7(k)
Here is yet another instance of failure on the part of the petitioner to comply with the strict requirements of law.  No date of the alleged gathering and address is pleaded. To say: “just few days before the polling commenced on 23 June, 1997...” is not good enough!
The exact amount of the funds allocated to each named Christian church group is not pleaded.
Moreover, no persons, and number of persons are pleaded to have been eligible voters.
Application is granted, the allegations here are struck out.
Paragraph 7(l)
Whilst this sub-paragraph reveals (or pleads) that the petitioner himself was present at the gathering and address referred to in the preceding sub-paragraph, the allegation here is of his own unfortunate physical predicament at the hands of persons he alleges were the first respondent’s “servants and agents”.
This allegation of physical assault on his person do not plead material facts grounding an Organic Law basis for challenging an election and its return.
The allegation here is, therefore, struck out as not demonstrating a known ground for an election petition pursuant to s.206 Organic Law.
Paragraph 7(m)
No material facts are pleaded here as required. For instance, the date of the alleged incidents: purchases of the motor vehicles and campaigning by the alleged presidents (of the local government councils) and councillors. The names of the councils, their presidents, and their councillors are not pleaded.
Serious allegations are made here, and yet the material facts forming the basis of these allegations have not been pleaded as required.
This sub-paragraph must be struck out.
Paragraph 7(n)
The allegation here has to be set out in full hereunder to demonstrate, once again, the necessity for having a law such as in s.208 Organic Law to ensure that only serious and meritorious challenges are brought against elections and their returns:
(n)      He installed loud hailers on two of his official government motor vehicles and used those to campaign by himself and by his servants and agents.
There’s no need to comment. The sub-paragraph speaks for itself. 
I grant the application of the respondents. The allegation here is struck out.
Paragraph 7(o)
Once again, there is absent here the pleading of material facts as required. 
No exact date of the incident alleged is pleaded, the exact amounts handed out, and to whom, and whether these (recipients) are eligible voters, are not pleaded. Nor are the alleged servants and agents identified by names and pleaded. No intent to bribe is pleaded.
This sub-paragraph must also be struck out as not complying with the strict requirements of the law.
Paragraph 7(p)
Similarly, absence of proper pleading of the material facts to constitute the elements of the offence alleged here, as required.
No date is given/pleaded of the alleged incident: “At the time of polling at ...” is not sufficient. The alleged servants and agents are not identified. The exact amounts handed out are not pleaded, and not pleaded in respect of an identifiable eligible voter. No intent to bribe is pleaded as required.
The allegation here must meet fate similar to the preceding allegations. The application is granted, and this sub-paragraph is struck out from the petition.
Paragraph 7(q)
The allegation here is in similar terms and manner, to that in the preceding sub-paragraph. Thus, it is devoid of clarity and specificity, rendering it in breach of the mandatory requirements of s.208(a) Organic Law, for the same reasons as in sub-paragraph 7(p).
I grant the application and strike out this allegation from the petition.
PARAGRAPH 8: OFFICIAL IRREGULARITY
This principal head of allegations lists what the petitioner contends are 8 separate incidents or instances of what he describes as “improprietness”(sic) on the part of the second and third respondents. He charges that these two respondents “either jointly or severally are guilty of not conducting the election properly.”
It is to be noted that the third respondent could only act (or fail to act) through its duly appointed officers, as it being a mere inanimate legal corporate entity could not act (or fail to act) on its own (and of its own volition) as if it were a human/person.
The law on the consequences or effects of official irregularities, i.e., errors and omissions committed by electoral officials, in the discharge of their legal and constitutional duties and responsibilities, is well settled in this jurisdiction in those cases cited above. Putting it briefly again, the law is that when the petitioner alleges official irregularities to challenge the election and return, he must plead material facts to demonstrate that the errors and omissions were likely (or would tend) to affect the result of the election.
In an election petition before the High Court of Australia (presided over by a single judge) following the 1993 Federal elections, alleging, inter alia, wrongful rejection of the petitioner’s nomination constituting an “illegal practice” (on the part of the Electoral Commission), Dawson J held, inter alia, that:
Even were the petitioner’s allegation correct, that his nomination had been wrongly rejected, insufficient facts had been adduced to satisfy the court that the result of the election was likely to be affected by the “illegal practice” of wrongful rejection. In any event, relief was precluded on like grounds by the application of s.365 of the Act which excused certain errors or omissions of electoral officers: Sykes -v-           Australian Electoral Commission (supra, headnote).
Whilst the learned High Court justice was stating his conclusion following the adducing of evidence at the trial, I would respectfully adopt the statement as pertinent to our situation here, where sufficient and material facts are required to be pleaded to demonstrate the likelihood or tendency to affect the result of the election. In 1977, Frost CJ in the case of In re Menyamya Open Parliamentary Election, Neville Bourne -v- Manasseh Voeto (supra) said that in illegal practices, the court should be satisfied that the result of the election was likely to be affected and that it is just that the election should be declared void (at 300).
Now, dealing with each of the 8 separate incidents or occasions in turn.
Paragraph 8(a)
As adverted to earlier (paragraphs 5 and 6, supra), this allegations about the first respondent’s nomination is intended to constitute “guilty of not conducting the election properly”, described by the petitioner as one of the 8 instances of “improprietness” (sic). And the specific fault or default complained of is the failure of the second respondent (and the third respondent, presumably, vicariously) “to reject the 1st respondent’s purported nomination ...”.
I refer to my detailed discussions on the question of qualifications (or lack of) for candidature at national general elections. I repeat here that there is no law known to our Constitution or the Organic Law that prohibits nomination as the first respondent did, nor that empowers electoral officials to reject such a nomination.
The Organic Law under Part XI, ss. 83-96, makes specific provisions in respect of nominations. But none of these relate directly to or envisage a situation such as that alleged here. Section 83 is in the following terms:
83.     Candidates must be Nominated
No person is qualified to be elected as a member unless he has been duly nominated.
Section 84 is in the following terms:
84.     Qualifications for Nomination
No person is qualified for nomination for an electorate while he is nominated for another electorate and that last-mentioned nomination has not been withdrawn.
The next pertinent provision under this Part is in relation to the requisites for proper or valid nomination. Section 87 reads as follows:
87.     Requisites for Nomination
No nomination is valid unless:
(a)      the person nominated consents to act if elected, and declares that he is qualified under the laws of Papua New Guinea to be elected as a member; and
(b)      the nomination paper, or the electronic advice referred to in Section 86(3), as the case may be, is received by the Returning Officer after the issue of the writ and before the hour of nomination; and
(c)      at the time of the delivery of the nomination papers the person nominated or some person on his behalf pays to the Returning Officer or other person to whom the nomination is made the nomination fee of K1,000.00 in money or in a banker’s cheque.
Finally, Section 89 provides for formal defects in the nomination process. It reads as follows:
89.     Formal Defects
No nomination shall be rejected by reason of a formal defect or error if the Returning Officer receiving the nomination, or the electronic advice, as the case may be, is satisfied that the provisions of this law have been substantially complied with. (underlining mine)
In any case, what is alleged here as being official irregularities does not amount to sufficient and material facts properly forming the ground(s) or basis for challenging the election and return pursuant to ss.206 and 208 Organic Law.
As in respect of paragraphs (5) and (6) (supra), I grant the application of the respondents and strike this sub-paragraph from the petition.
Paragraph 8(b)
As well as failing to plead the date of the alleged incident, there is uncertainty here as to what exactly is the allegation. What appears under this sub-paragraph does not disclose any error or omission recognised by the Organic Law that is capable of invalidating an election and its return. 
Moreover, sufficient and material facts are not pleaded here that would disclose or demonstrate the likelihood of the result of the election being affected.
I grant the application and strike out this sub-paragraph from the petition.
Paragraph 8(c)
Same reasons for granting the application as in the preceding sub-paragraphs. This sub-paragraph is struck out.
Paragraph 8(d)
What is alleged here does not plead sufficient and material facts to disclose or demonstrate how the result of the election was likely to be affected. Consequently, it fails to comply with the mandatory requirements of s.208(a) Organic Law in the way decided cases have insisted.
This sub-paragraph is, thus, struck out as sought by the respondents.
Paragraph 8(e)
As in the case of the last three preceding sub-paragraphs, the allegation here does not plead sufficient and material facts to demonstrate how and whether or not the errors or omissions were likely to affect the result of the election. It is only when this is done, in compliance with s.208(a) Organic Law as insisted by the decided cases that the court will be enabled to determine whether or not the election should be declared invalid.
Similar fate must, therefore, visit this allegation. The application of the respondents is granted, and the sub-paragraph is struck out from the petition.
Paragraph 8(f)
The errors or omissions alleged here are in respect of “scrutiny”. It is alleged that no proper scrutiny of the counting was done at all up to the date of declaration on 6 July 1997. And this was, it is alleged, as a direct result of the involvement of soldiers from the PNGDF at the gates and premises of the Wabag Community School, where scrutineers and counting officials, it is alleged also, were assaulted and shot at (by the soldiers).
It needs to be said here, because of the very serious nature of these allegations, that these are only in quite general terms devoid of clarity and specificity. For instance, no dates are pleaded, nor are the soldiers identified and their numerical strength determined in the pleading. The victims of their assaults are not identified and pleaded. Similarly who were scrutineers and who were counting officials?
This sub-paragraph fails to plead with some clarity and definition the material facts relied on as establishing a ground upon which the election and return can be invalidated. And finally, the petitioner does not plead material facts to demonstrate how the result of the election were likely to have been affected by the alleged errors and omissions of the second and third respondents.
Provisions of the Organic Law on “scrutiny” at elections are to be found under Part XIV, ss.147-174. Here, the allegation is in respect of the scrutiny of the counting.
Because of the reasons stated above, there is no present purpose in canvassing these provisions at all, or in detail. Suffice to say, the petition does not define or specify (in this sub-paragraph) what contributed to or constituted “No proper scrutiny of counting”. That is to say, the error, or omission, or irregularity, is not specified and pleaded here.
This general allegation must be struck out. I grant the application.
Paragraph 8(g)
Once again, the allegation here has to be set out in full hereunder, to demonstrate this obvious inadequacy in, or the insufficiency of, the pleadings as required:
(g)      The second and third respondents were unable to match the sex tally sheets with the contents of the ballot boxes and the total electors per the principal role of electors per a polling place.
The same verdict is given here as in (or for) the preceding allegation. The sub-paragraph fails to plead, firstly, any material facts constituting errors or omissions on the part of these respondents, and, secondly, to demonstrate how these were likely to affect the result of the election.
I grant the application, and the allegation here is struck out of the petition.
Paragraph 8(h)
Allegation here is in very general terms, once again devoid of clarity and specificity. In any case, as with the preceding allegations, the petitioner fails to demonstrate this alleged error or omission, or irregularity, was likely to affect the result of the election.
The sub-paragraph must be struck out.
RELIEFS OR REMEDIES
The final part of this petition seeks certain reliefs or remedies: paragraph 9 (1) to (11). The first point to make in respect of reliefs or remedies that the court can grant in appropriate circumstances in the exercise of this special jurisdiction is that only those that are defined under the powers of the court are available. And the powers of the National Court sitting as a Court of Disputed Returns under the Constitution and the Organic Law (supra) are set out under s.212. It is convenient to set out this provision in full hereunder:
212.    Powers of Court
(1)      In relation to any matter under this part the National Court shall sit as an open court and may, amongst other things:
(a)      adjourn; and
(b)      compel the attendance of witnesses and the        production of documents; and
(c)      grant to a party to a petition leave to inspect, in the presence of a prescribed officer, the Rolls and other documents (except ballot-papers) used at or in connection with an election and take, in the presence of the prescribed officer, extracts from those Rolls and documents; and
(d)      order a re-count of the ballot-papers in an electorate; and
(e)      examine witnesses on oath; and
(f)      declare that a person who was returned as elected was not duly elected; and
(g)      declare a candidate duly elected who was not returned as elected; and
(h)      declare an election absolutely void; and
(i)       dismiss or uphold a petition in whole or in part; and
(j)      award costs; and
(k)      punish contempt of its authority by fine or imprisonment
(2)      . . .
(3)      The Court may exercise all or any of its powers under this section on such grounds as the Court in its discretion thinks just and sufficient.
(4)      Without limiting the powers conferred by this section, the power of the Court to declare that a person who was returned as elected was not duly elected, or to declare an election absolutely void, may be exercised on the ground that illegal practices were committed in connection with the election.
And specifically on the voiding of elections on the grounds of illegal practices, the Organic Law makes the necessary provisions under s.215 in the following terms (the pertinent parts):
215.    Voiding of Election for Illegal Practices
(1)      If the National Court finds that a candidate has committed or has attempted to commit bribery or undue influence, his election, if he is a successful candidate, shall be declared void.
(2)      . . .
(3)      The National Court shall not declare that a person returned as elected was not duly elected or declare an election void-
(a)      on the ground of an illegal practice committed by a person other than the candidate and without the candidate’s knowledge or authority; or
(b)      on the ground of an illegal practice other than bribery or undue influence or attempted bribery or undue influence,
unless the Court is satisfied that the result of the election was likely to be affected, and that it is just that the candidate should be declared not to be duly elected or that the election should be declared void.
The Organic Law under s.217 enjoins the Court, when asked to exercise any of those powers (under ss. 212 and 215), to be guided by “the substantial merits and good conscience of each case without regard to legal forms or technicalities, or whether the evidence before it is in accordance with the law of evidence or not.
Finally, in the spirit of the necessity to preserve certainty and integrity of the electoral process, by, inter alia, the discouragement of groundless and unmeritorious challenges to elections and their returns, the Organic Law says that immaterial errors are not to vitiate an election. This is under s.218 which reads as follows:
218.    Immaterial Errors not to Vitiate Election
(1)      Subject to subsection (2), an election shall not be avoided on account of a delay in the declaration of nominations, the polling, the declaration of the poll or the return of the writ, or on account of the absence or an error or, or the omission by, an officer which did not affect the result of the election.
(2)      When an elector was, on account of the absence or an error of, or an omission by, an officer, prevented from voting in an election, the National Court shall not for the purpose of determining whether the absence or error of, or the omission by, the officer did or did not affect the result of the election, admit evidence of the way in which the elector intended to vote in the election. (underlining mine)
The second point to be made in respect of the reliefs or remedies available is that, these have to be specified in the petition: s.208(b). Three points need to be made in respect of this mandatory requirement. Firstly, there is no requirement that the relief to which the petitioner intends to claim (as being entitled) has to be specified at the beginning, or the middle, nor at the end, of each allegation challenging the validity of the election or return. It has been contended by various counsel in these recent applications “to strike out” petitions that the particular relief or remedy must be specified in each allegation, as part of the pleading of facts. And they have relied on the case of In the Application by William Ekip Wii (supra) for this proposition. It has to be noted that this Supreme Court decision (Los, Hinchliffe and Salika JJ) was, with respect, made per incuriam. The court’s attention does not appear to have been drawn to the case of Nakon Ipe -v- Mana Napas (1981)(supra). Though only a decision of the National Court (per Miles J), what the learned judge stated there (at p.130) makes, with respect, good sense. The pertinent extract is re-produced hereunder:
... where a petition alleges bribery ... it must by necessary implication claim that the election should be declared void. Further, if an allegation of bribery is made in the petition and bribery is in fact proved s.191(1) requires the Court to declare the election void ... There is no discretion in the Court and that duty of the Court is plain regardless of what relief is claimed by the Petitioner.
The court there was considering provisions of the Provincial Government (Electoral Provisions) Regulations 1977 (as applied to the Southern Highlands Province). Section 184(1)(b) Regulations is in exact terms as in s.208 (b) Organic Law. Section 191(1) Regulations is also in similar terms to s.215(1) Organic Law. And it has to be further noted that the learned judge, when dealing with the question of standard of proof, referred to the remarks of Frost CJ in In re Menyamya Open Parliamentary Election, Neville Bourne -v- Manasseh Voeto (1977) and applied the same standard: “to my entire satisfaction”, “just short of the criminal standard, although in application I consider there would be no real practical difference”. And in the process the learned Chief Justice referred to the Australian case of Crouch -v- Ozanne (1910), a decision of his Honour O’Connor J. The learned High Court judge said the following (at p.541):
If I were to find bribery proved, I would have no option than to declare the election void, and necessarily, thesitting candidate unseated. It even might be that the act of bribery was an attempt only which failed and that no single vote was affected by it, yet if I were to find that bribery had been established, I should be obliged to declare the election void.
Secondly, just as with law (issues of) reliefs or remedies do not need to be pleaded. Thirdly, where a relief or remedy is specifically provided for in respect of a particular ground for petition, as for instance illegal practices including bribery and undue influence (under s.215), there is no need to specify the relief or remedy. It is already available by law for that particular circumstance, and the court has no discretion.
Now, dealing with each of the purported reliefs or remedies sought here.
Paragraph 9(1)
This remedy is not available under the powers of the Court exercising this special jurisdiction under the Organic Law (ss. 212 and 215).
Paragraph 9(2)
Similarly, the remedy of declaration sought here. The Court has no jurisdiction in this respect.
Paragraph(3)
Similarly, the declaration that the first respondent was not duly nominated that is being sought here. Sections 212 and 215 of the Organic Law vest no power in this Court to grant such a relief. See: discussions on paragraphs (5), (6) and (8)(a)(supra).
Paragraph 9(4)
There is no jurisdiction in this Court (under ss.212 or 215 Organic Law) exercising the jurisdiction pursuant to s.206, to grant the relief sought here.
Paragraph 9(5)
Similarly, as sought here.
Paragraph 9(6)
Same conclusion as in the preceding paragraphs.
Paragraph 9(7)
Similarly, this Court has no jurisdiction to declare that the election of the first respondent is null and void. The court can only grant the remedies specified under s.212(1) (f)-(h) (inclusive) and s.215(1) Organic Law.
Paragraph 9(8)
The petitioner seeks an order for a by-election for the electorate to be conducted by the second and third respondents.
The relief sought here cannot be granted unless the election is declared absolutely void. And that particular relief has not been sought in any of the reliefs specified under paragraph (9).
Paragraph 9(9)
No jurisdiction to grant this relief.
Paragraph 9(10) and (11)
No need to consider and comment here.
In the light of the cumulative effect of the foregoing conclusions in respect of each of the principal heads of allegations, and, consequently, by the coming into effect and operation the provisions under s.210 Organic Law, it is the judgment of this Court that this petition be struck out in whole at this juncture.
Petitioner in person (and on his own behalf)
Lawyers for the 1st Respondent: Henao Lawyers
Lawyers for the 2nd & 3rd Respondents: Maladinas Lawyers