N4899

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP. NO. 10 & 11 OF 2012

IN THE MATTER OF ORGANIC LAW ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS

AND IN THE MATTER OF ELECTIONS AND RETURNS FOR HAGEN OPEN ELECTORATE, WESTERN HIGHLANDS PROVINCE

BETWEEN

JAMES YOKA EKIP
Petitioner

AND:

SIMON SANAGKE
Petitioner

AND:

GORDON WIMB, RETURNING OFFICER
First Respondent

AND

ELECTORAL COMMISSIONER OF PAPUA NEW GUINEA
Second Respondent

AND

WILLIAM DUMA
Third Respondent

Mt. Hagen: Kandakasi, J.
2012: 20th & 21st November

ELECTION PETITION – PRACTICE & PROCEDURE - Objection to Competency – Pleading grounds of petition – Requirements of s. 208 (a) and (d) of the Organic Law on National and Local-level Government Elections (Organic Law on Elections) – Inconsistent pleadings – Petitioners need to make a choice on which ground they rely on – In appropriate to plead in the alternative. 

ELECTION PETITION - PRACTICE & PROCEDURE – Sufficiency of pleadings of facts required by s. 208 (a) of the Organic Law on Elections – Intention of the Organic Law - Petitioner to plead the facts constituting a ground for the petition so as to inform the Respondents and the Court the basis for the petition – What fact must be pleaded is dependent on the ground of the petition – Need only pleading the essential elements of the offence, irregularity, illegality or errors and omissions relied on to vitiate an election result – Petition failing to plead facts addressing all of the essential elements – Petition incompetent.

 ELECTION PETITION - PRACTICE & PROCEDURE – Attestation of petition by witnesses – Purpose of requirement – Attest to facts relied on by person coming from the electorate and having knowledge of the facts relied upon - Need to sufficiently state name, occupation, and address – Purpose – Easy and ready identification and location of witnesses – Whether stating an area in a city sufficient for the purposes of s. 208 (d) – Insufficient fact – Petition incompetent.

Cases Cited

Mathias Ijape v. Biri Kimisopa (2003) N2344
Jimson Sauk v. Don Polye (2004) SC769
Ginson Saonu v. Bob Dade (2004) SC 763
Delba Biri v. Bill Ninkama [1982] PNGLR 342
Holloway v. Ivarato [1988] PNGLR 99
Benias Peri v. Nane Petrus Thomas & Electoral Commission (Unreported and Unnumbered judgment of 20/4/04).
Francis Koimanrea & Or v. The Electoral Commission and Paul Tiensten (Unreported & un-numbered judgment of 13/3/03)
Pirika Kamma v. John Itanu, Electoral Commission and Michael Laimo (2007) N3246
Dick Mune v. Anderson Agiru & Ors (1998) SC590
Sir Arnold Amet v. Peter Yama (2010) SC1064
Lambu v. Peter Ipatas & Ors.(1997) N1701
Ludger Mond v. Jeffery Nape & Ors (2003) N2318
Louis Ambane v. Thomas Tumun Sumuno (1998) SC559
Agonia v. Karo & Electoral Commission [1992] PNGLR 463
Vagi Mae v. Jack Genia & Electoral Commission (1992) N1105
Greg Mongi v. Bernard Vogae & Anor (1997) N1635
Torato v. Electoral Commission [1988-89] PNGLR 83
Olmi v. Kuman (2002) N2310
Joel Paua v. Robert Nagle [1992] PNGLR 563
Ben Micah v. Ian Ling Stuckey (1998) N1791
Beseo v. Bao (2003) N2348
Francis Koimanrea v. Alois Sumunda (2003) N2421
Luke Alfred Manase v Don Pomb Polye (2009) N3718
Robert Kopaol v. Philemon Embel (2003) SC727 
Albert Karo v. Lady Kidu (1997) N1626

Counsel

B. Boma, for the Petitioner in EP 10 of 2012
F. Alua, for the Petitioner in EP 11 of 2012.
A. Kongri, for the First Respondents. 
S. Tadabe, for the Second Respondent
H.Nii, for the Third Respondent

21st November, 2012

1.	KANDAKASI J: Two losing candidates, Simon Sanangke and James Yoka Ekip (the Petitioners) for the Hagen Open Seat in the recently concluded National General elections, separately petition this Court to void the election results and order a by-election. That is on allegations of alleged errors, omissions and illegal practices of Electoral Commission officials, which resulted in exclusion from the counting of 21 ballot boxes containing allegedly 21,683 votes. No wrong doing is alleged against Honourable William Duma who ultimately won the Seat but he has been named as a party and is the Third Respondent. 

Objection to competencies

2.	The Returning Officer, the Electoral Commissioner and Honourable William Duma (the Respondents) have raised objections against the competency of the petitions on essentially three grounds. These grounds are:

(1)	Contrary to the requirements of s. 208 (a) of the Organic Law on National and Local-level Government Elections as amended (the Organic Law on Elections), the petitions do not state the facts relied on to void the election;

(2)	The petitions are incompetent for stating alternative and or contradictory facts; and

(3)	In respect of EP 11 of 2012, the address of the attesting witnesses given as "8 Mile, National Capital District" is insufficient for the purpose of s. 208 (d) of the Organic Law on Elections.

3.	The petitioners oppose the objections and claim that they have sufficiently stated the facts and have not stated any fact in the alternative or contradictory to other facts stated in their respective petitions.

Relevant Issues

4.	Clearly therefore the issues this Court must resolve are these:

(1)	Have the Petitioners sufficiently stated the relevant facts of an alleged error, omission, irregularity or illegal practice which affected the election results for the Hagen Open Electorate in the 2012 National General Elections?

(2)	Do the petitions state facts that are in the alternative and or are contradictory to other facts stated in them?

(3)	In respect of EP 11 of 2012, is the statement of the attesting witnesses' address as "8 Mile, National Capital District" sufficient for the purposes of s.208 (d) of the Organic Law on Elections?

5.	The first two issues can be dealt with together, while the third issue is one that can be dealt with on its own. However, the same principles of law are applicable to all three issues. I will thus first discuss and state generally the relevant and applicable law. Thereafter, I will get into an application of the law to the specific issues presented.

Relevant Law

6.	All learned counsel appearing before me have ably assisted me with their submissions in writing to which they spoke to at the hearing yesterday. I am grateful for their assistance. On close examination and consideration of the submissions however, I find one strange occurrence. That is in respect of the submissions by Mr. Alua of counsel for the petitioner, Simon Sanangke.

7.	Without quoting or acknowledging the source, Mr. Alua adopts word for word and paragraph for paragraph (save only for a very small part) what I said in my decision in Mathias Ijape v Bire Kimisopa, and submits that work as if his own. This unacknowledged presentation of my own work by counsel starts at paragraph 6 of his submission through to paragraph 20, which is the whole of counsel's submission on the relevant law. This certainly does not reflect well on counsel. Subject to further hearing of counsel at an appropriate time after the handing down of this decision, what counsel has done is an entrance into the sphere of plagiarism, which is a serious but separate matter. I point out clearly however that, this conduct of counsel cannot and is of no adverse consequence against his client's case. 

8.	The submissions of all counsel correctly identified some of the most relevant Supreme and National Court decisions and ably submitted on the relevant law. The submissions agree on what the law is. What is in contention is the application of these principles to the present case. 

9.	Until the decision of the Supreme Court in the two cases of Jimson Sauk v. Don Polye and Ginson Saonu v. Bob Dade, election petitions have been met with strong objections as to their competence and the Courts have almost readily upheld the objections to the point where no petition was able to get to a hearing on the substantive merits of a petition. That position followed from the decision of the earlier Supreme Court decision in Delba Biri v. Bill Ninkama which was followed by the decision of the Supreme Court in Sir Barry Holloway v. Aita Ivarato & Electoral Commission and many subsequent others.

10.	In Delba Biri's case, the Supreme Court for the first time considered provisions of s. 208 of the Organic Law on Elections. The case went to the Supreme Court by way of referral of two questions to the Supreme Court by the National Court. The questions thus referred were: 

1.	"To what extent must an electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to the Organic Law on National Elections comply with Section 208?" and

2.	"To what extent or in what circumstances may the National Court sitting as a Court of Disputed Returns under s. 206 of the Organic Law on National Elections permit or allow an amendment of an election petition which does not comply with all or any of the provisions of the Organic Law on National Elections?"

11.	The first question is relevant for our purpose while the second is not. In respect of the first question, the Supreme Court said:

"The requisites in s. 208 and s. 209 are conditions precedent to instituting proceedings by way of petition to the National Court. In our view, it is clear that all the requirements in s. 208 and s. 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections, it is a Constitutional Law. Section 210 simply precludes any proceeding unless s. 208 and s. 209 are complied with.
...
In our opinion it is beyond argument that if a petition does not comply with all the requirements of s. 208 of the Organic Law on National Elections, then there can be no proceedings on the petition because of s. 210."

12.	Accordingly, the Supreme Court answered the first question in these terms:

"An electoral petition disputing the validity of an election addressed to the National Court and filed pursuant to s. 206 of the Organic Law on National Elections must comply strictly with each and every requirement of s. 208 of that Law".

13.	In what I consider to be a ready application without more of what the Supreme Court said in Delba Biri's case, has resulted in many petitions being dismissed. Some of these are my own decisions as in the case of Mathias Ijape v. Bire Kimisopa, where I dismissed the petition in that case for not being addressed to the National Court in addition to a failure to state the facts as required by s, 208(a). Two subsequent National Court decisions in the matter of Jimson Sauk v. Polye and Ginson Saonu v. Bob Dadae followed my decision and dismissed the respective petitions for not being addressed to the National Court as required by s.206 of the Organic Law on Elections. These decisions subsequently ended up in the Supreme Court.

14.	The Supreme Court in the Ginson Saonu v. Bob Dadae and Jimson Sauk v. Don Polye changed the course of readily accepting and applying the decision in Delba Biri's case, and redirected the Courts to be guided by ss. 208, 209 and 210 of the Organic Law on Elections. That change was put in motion by a number of National Court decisions like the decision of late Hinchliffe J in Benias Peri v. Nane Petrus Thomas & Electoral Commission where His Honour in commenting upon another decision said:

"With all respect to the trial judge, it seems to me that his requirements to satisfy s 208 (a) were so demanding that if every petition was dealt with in the same way then no petition would ever get past the competency stage. .... it would also seem to me that we are making it more and more difficult for petitioners to proceed when that was not the intention of the Legislature in the first place. Our Legislators obviously saw a situation where the petitioner could appear on his own petition without a lawyer and in fact if a petitioner did wish to be represented by counsel then it had to be with the leave of the Court (see s 222 of the Organic Law). Clearly the preparation and presentation of a petition and the subsequent Court appearance was meant to be relatively uncomplicated and fairly simple. Unfortunately we have allowed it all now to turn into a nightmare where even some of the most senior lawyers in the country are drafting petitions, which are being declared incompetent by our Courts and being struck out and thrown out. One wonders where it is all going to end. Clearly the differing opinion on where the material and relevant facts finish and where the evidence commences, needs to be cleared up, possibly by a five Judge Supreme Court. It must also not be forgotten that an election petition does not only involve two or three people as in a typical civil cause but it involves hundreds and sometimes thousands of people in the electorate. For those people to come to Court to hear an election petition then only to be told that it finished almost before it started because of what I consider to be technicalities must be extremely confusing and disappointing for those people who had come to Court to see that justice was done. In some cases whether justice was ever done or not will never be known because the case was never heard."

15.	Another decision is the decision of His Honour Sakora J in Francis Koimanrea & Anor v. Electoral Commission & Paul Tiensten. There His Honour made similar observations in these terms:

"Another recurring theme in these discussions is the serious consequences from the results of elections because of the serious interests at stake. Thus, to challenge an election or its return under the Organic Law is not, and ought not to be considered such a light matter. It necessarily involves the questioning of the integrity of the electoral system and its processes. If elections are not held or conducted properly, regularly, according to law, public interest demands that such shortcomings, such pretence at regularity and validity, should not go without challenge and un-remedied. Otherwise the entire electoral system and its processes would undoubtedly be held up to public ridicule and brought into disrepute. Citizens would lose respect for and confidence in their Constitution and its processes. Democracy as enshrined in the Constitution would degenerate into a total farce. It is in the public interest also that corrupt unscrupulous persons who manipulate the electoral system and its processes to assume leadership positions should not continue in such positions to the detriment of the country and its people.

Conversely, if the elections have been properly and regularly held or conducted, thereby according to the citizens, the eligible voters, a free and fair opportunity to elect their representatives, or be elected themselves, to public office, then public interest would demand too that such elections ought not be disturbed or overturned, or indeed questioned, on wild sensationalist, unmeritorious and unsustainable allegations."

16.	The decision of the Supreme Court in the Ginson Saonu's case, endorsed the views expressed by their Honours Hinchliffe J and Sakora J in their respective decisions. In so doing, the Supreme Court upheld a review of a decision of the National Court which dismissed the petition for not being addressed to the National Court. In arriving at its decision the Supreme Court said:

"It is our opinion that nothing can be clearer than s.210 of the Organic Law. It is crystal clear that Sections 208 and 209 are the only requisites of a petition. A petitioner must comply with those two provisions. So long as a petitioner complies with those mandatory requirements, the Court must allow his petition to proceed to trial. Section 206 is not a requisite of a petition therefore a petition is not incompetent by reason of not specifically stating the words or phrase 'To: The National Court of Justice' or 'To: The National Court.'" 

17.	In the Jimson Sauk case, the Supreme Court came to a similar decision as the one in the Ginson Saonu case. There too, National Court had dismissed a petition also on the basis of the petition not being addressed to the National Court has provided for under s. 206 of the Organic Law on Elections. 

18.	On my part, since my earlier decisions in Mathias Ijape v. Bire Kimisopa and others I came to some serious concerns over the strict approach. Then when the opportunity was presented, I indicated my revised position in my decision in Steven Pirika Kamma v. John Itanu, Electoral Commission and Michael Laimo. There I said: 

"I have since become aware and have concerns over the correctness and appropriateness of that trend because of the adverse effects the trend has been having on election petitions and an elector's right to challenge an election result, which is a right, granted by a Constitutional law. As I have observed in a number of election petition cases this year during directions and pre-trial conferences, the application of these principles have become more stricter to the point that objections to competencies have become far too highly technical and in some cases purely nit-picking to say the least. In the process, the Courts at the instance of lawyers have effectively built into s. 208 additional requirements in almost total disregard of the requirements of other equally important provisions of the Organic Law such as s. 217 which obligates the Court 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.'"

19.	Having expressed myself in those terms, I gladly proceeded to adopt the views expressed by the Supreme Court in the Ginson Saonu and Jimson Sauk cases and I did so in these terms:

"… I have had the benefit of reading and considering the judgments of the Supreme Court in Jimson Sauk v. Don Pomb Polye (supra) and Ginson Saonu v. Bob Dadae (supra). Having done so, I am pleased that at last the Supreme Court has addressed my concerns and has fortified my observations and concerns regarding the first failure. I agree unreservedly with what the Supreme Court said in these two cases and adopt them as my own".

20.	Contrary to the submissions of learned counsel for the First Respondent, Mr. Kongiri, I note that the Supreme Court in the Jimson Sauk and Ginson Saonu cases did not water down the need to meet the strict requirements of s. 208, 209 and 210 of the Organic Law on Elections. In the Jimson Sauk case, the Supreme Court after citing Delba Biri's case as the leading authority in respect of what form petitions should take and the requirements under ss. 208, 209 and 210 said: 

"It is pertinent to note here, and we do not hesitate to say, that it is trite law that petitions must comply with s.208 of the Organic Law otherwise, the petition is precluded from proceeding to trial because of s.210. Interestingly enough, the Supreme Court in that case did not say that the petition must also strictly comply with s.206 of the Organic Law. In our view, it is not difficult to see why. In simple terms, s.206 is not a requisite of a petition therefore there is no requirement for a strict compliance."

21.	The Court went on to say:

"In election petitions the subject of the National Court's determination and the resultant application for review before us now, what provision in the Organic Law creates or vests jurisdiction? We would, without hesitation, hold that s 208 does by its enumeration of five (5) requisites of an election petition. The mandatory nature of these requisites is well established from a line of judicial authorities starting with the seminal decision of the Supreme Court in the case of: Delba Biri v Bill Gembogl Ninkama [1982] PNGLR 342, where the Court stated (at 345) that:

'In our view it is clear that all the requirements in s 208 and s 209 must be complied with. Section 208 is in mandatory terms and being the Organic Law on National Elections it is a Constitutional Law. Section 210 simply precludes any proceedings unless s 208 and s 209 are complied with.'

The Supreme Court interpreted ss. 208, 209 and 210 and laid down the law that unless a party (petitioner) strictly complies with the requirements of ss 208 and 209, pursuant to s 210, the National Court had no jurisdiction to entertain and grant relief(s) under the Organic Law. A petition could be filed pursuant to s 206 (Method of Disputing Returns), but unless each and every requirement of ss 208 and 209 were satisfied, the National Court could not begin to entertain the challenge to the election and its return.
...
The dictionary definition of 'requisite' means something that is needed for a purpose; necessary. Without it, nothing can be done. Thus, it is a thing needed for a particular purpose. And, in the context of an election petition under the Organic Law, each of the five (5) requisites under s 208 is an essential element (or ingredient) of a petition capable of invoking the jurisdiction of the National Court. Absence of or non-compliance with any one or more of the requisites will render the petition incompetent. Similarly s.209, where, at the time of filing the petition, if no deposit of the sum of K2,500.00 is made with the Registrar of the National Court, the National Court cannot exercise jurisdiction over the challenge to the election or return. It is not a valid petition." 

22.	From these decisions it is clear that, there is a need to carefully weigh the equally important needs of protecting the electoral process from petitioners who come with wild sensationalist, unmeritorious and unsustainable allegations and a voter's right to challenge the validity of an election outcome that has not come the correct and proper way on groups that are properly supported by facts that have merit and are not speculative, sensational and unsustainable. Hence, there is no law against meritorious and sustainable allegations being permitted to challenge election results out of elections that have been improperly conducted and the return of an election unduly returned. Indeed s. 208 and 210 of the Organic Law on Elections could be seen as the filtering process through which meritorious and sustainable allegations which have clarity around them with the relevant and material facts relied upon sufficiently stated, can be allowed to proceed to a hearing while unmeritorious and unsustainable allegations or allegations which lack clarity and completeness around the relevant and material facts relied upon can be prevented from proceeding to a hearing. 

23.	Sections 208 and 210 read 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 the declaration of the result of the election in accordance with Section 175(1)(a).
….

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."

24.	Of particular relevance and application in this case is s. 208 (a) and (d) and s. 210. Much of the case law is around s. 208 (a) and a few around s.208 (d). Looking firstly at s. 208 (a), this provision clearly requires a petition to "state the facts relied on…" In Holloway v Ivarato, Kapi DCJ (as he then was) with whom Los and Hinchliffe JJ agreed said this of this requirement:

"The requirement of s 208(a) of the Organic Law is to set out the facts which constitute the grounds upon which an election or return may be declared invalid. Setting out grounds without more does not satisfy the requirements of s 208(a) of the Organic Law. The facts set out under s 208(a) of the Organic Law would necessarily indicate the ground upon which a petitioner relies. 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."

25.	Then as to what are sufficient facts, the then learned Deputy Chief Justice said:

"What are sufficient facts depends on the facts alleged and the grounds those facts seek to establish. Anything falling short of that would defeat the whole purpose of pleading, that is, to indicate clearly the issues upon which the opposing party may prepare his case and to enable the court to be clear about the issues involved."

26.	Subsequently the Supreme Court in Dick Mune v. Anderson Agiru & Ors, endorsed the above statement of the law. Then on its part, the Court said, pleading the facts does not mean to state "the evidence by which it or they might be proved" or the law. But the Court also said where an allegation is founded on a breach of a law or a statutory provision, the facts disclosing or establishing the alleged breach must be stated and possibly a reference to the relevant provision of the law. This is to enable the opposing parties and the court to know what exactly is being alleged and they need to prepare for and defend or concede, as the case might be. 

27.	Recently the Supreme Court in Sir Arnold Amet v. Peter Yama endorsed the law on s. 208 (a) of the Organic Law on Elections per the decision in the Holloway v. Ivarato and the long line of cases that follow and apply that decision as to what are facts.

28.	Before the decision in Amet v. Yama, His Honour Sakora J in David Lambu v. Peter Ipatas & Ors, took the view that the term "facts" does not require any special meaning and said "facts" mean occurrence of events or things. 

29.	In my own decision in Steven Pirika Kamma v. Michael Laimo & Ors I said this of the need to state the facts:

"I note that s.208 merely requires amongst others in paragraph (a) 'the facts relied on to invalidate the election return.' It does not say for instances that there must be no inconsistency in the facts relied on or that the facts must be set in full or with much detail. We have reached the result we have thus far not because the legislation says it but because lawyers who are not supposed to be involved in election petitions as of right becoming creative without having regard to what the legislation is actually saying and the intention behind that, which has only recently been adequately elaborated by the Supreme Court's decision in Jimson Sauk v. Don Pomb Polye (supra) and Ginson Saonu v. Bob Dade (supra) and the Courts ready acceptances of the Lawyers making. What the Courts and the parties should be looking at is whether the facts relied on to upset an election are stated in the petition sufficiently to disclose the fact alleged and not necessarily left for the trial or hearing of the petition as long as there is a clear statement of a fact of an illegality or, irregularity or, error or omissions which affected the results of an election". 

30.	Earlier on in Ludger Mond v. Jeffery Nape & Ors, I expressed a similar view in these terms:

"It is clear from this that if a petition alleges an illegal practice or conduct other than bribery or undue influence of a winner of an election, the petitioner must plead that the conduct was likely to affect the election result and show that. To do that, it is necessary in my view, to plead the relevant number of votes secured by the winner and the runner-up to determine whether or not the result was or would have been affected. This is in addition to pleading the facts constituting the conduct in question. A failure to do so would amount to a failure to meet the strict requirements under s.208 (a) and form the foundation for evidence to be led for a relief under s. 215 (3) (b). This is necessary because without the pleadings, no evidence can be led. After all, pleadings drive the evidence." 

31.	In my judgment in Mathias Ijape v. Bire Kimisopa, I did note that what I said in Ludger Mond v. Jeffery Nape & Ors appears to be at variance with what the then Chief Justice said in the case of Louis Ambane v. Thomas Tumun Sumuno. There Amet CJ (as he then was) said:

"It is trite that the 'result' means the return of the particular candidate and not the numbers of his majority, which means the result as between any of the candidates as determined by the allocation of the votes upon a count, and not the result between the winner and the runner up only, or between the winner and the petitioner as suggested by this contention."

32.	I noted that, the above was in the context of s. 218(1) of the Organic Law and in a case where the court had earlier ordered a recount of ballot papers for the purposes of ascertaining whether the results would be affected for the purposes of s.218(1). There in the words of the then Deputy Chief Justice, the late Sir Mari Kapi, with Amet CJ expressing similar views, said after a trial:

"...in order to satisfy the criteria set out in s. 218 (1) of the Organic Law, the Court must examine and count the total number of votes [excluded] and determine the manner in which the votes may be distributed amongst the candidates and not merely speculate as was the true nature of what the trial judge did in determining the total number of votes. The trial judge based his finding on the estimates given by Electoral Commission officials and not on an examination of the votes. We have already determined that the trial judge fell into error in our earlier ruling."

33.	I further noted in my decision in Mathias Ijape v Bire Kimisopa that the Court still had to deal with the number of votes secured by the petitioning candidate and the winning candidate to determine if the election results were affected. The Court had earlier found that the National Court had acted on speculation instead of real numbers. It therefore, ordered a recount of the ballots to determine the real figures and to determine whether the conducts complained of was likely to have affected the election result. The recount of the votes established that the petitioner in that case secured more votes than the declared winner. Therefore, the Court ordered in favour of the petitioner and declared the relevant election void and ordered a by-election.

34.	In my final analysis of what the authoritative decisions of the Supreme Court say and the long line of cases that have followed it, I am of the view that, we are left with a clear guidance as to what facts must be stated for the purposes of s. 208(a). It is clear now for instance that, where a petition is based on the grounds that constitute an offence such as bribery or undue influence, the facts which form the foundation for such a ground must be stated. The facts should address each and every element which constitutes the offence. The case of Agonia v. Karo & Electoral Commission is an example of an authority on point.

35.	Then as to the kind of specifics that must be stated to meet the requirement to "set out the facts relied on" under s. 208 (a) I note that, they include facts which describe what happened or should have occurred but did not which form the foundation for a ground for a petition. Such specifics include the total number of votes casted, disputed and or secured by a winning candidate, the runner up and other candidates, names of people who are responsible for the matters complained of, when and where the events, be it errors, omissions or illegal practices have occurred and a description of the conduct, error, omission or illegal practice complained of. Statement of facts in general terms without the relevant and necessary details of the kind just mentioned which, if stated could give a complete story, would fail to meet the requirements of s. 208 (a). For it is not the role of the Court to draw possible conclusions or infer possible situations or speculate. This is the case because, unlike any other matter that goes to the National Court, election petitions fall in a special jurisdiction, in which each ground stated in a petition is a separate issue for trial. 

36.	Moreover, where a petition is grounded on alleged errors and omissions and or illegal practices, the statement of facts must apart from stating the facts revealing an error, omission, irregularity or illegal practice in terms of what I have stated above, include a statement that the winning candidate had knowledge and authorized the facts set out in the petition. The petition must also state or show how the matters complained of affected the election result and how it is just that the duly elected winner be declared not so elected. 

Application of the Law to the Present Case

37.	I now turn to a consideration of the application of the above relevant principles of law to the issues presented in the present case. The first issue I turn to is a consideration of the sufficiency of the statement of the facts the petitioners rely on to vitiate the election results for the Hagen Open Electorate, which is the subject of the first and second main issues.

Have the Petitioners sufficiently and without contradiction stated the relevant facts to vitiate the election for the Hagen Open Electorate in the 2012 National General Elections?

The Petitions 

38.	Both of the petitions are in identical terms. They both have only two main grounds. These grounds concern the decision by the First Respondent in his then capacity as the Returning Officer to exclude 21 ballot boxes from being counted. EP 11 of 2012 in relevant parts state the facts as follows:

"1.	On the 20th of July 2012, the First Respondent declared as elected the Third Respondent.

a)	this declaration was made after the First Respondent rejected 21 boxes containing some 21,683 cast ballot papers (hereafter, "the votes in the 21 ballot boxes") on the basis that the ballot papers were not lawfully cast or that they were tampered with.

b)	the First Respondent did not tell candidate's scrutinizers at the counting venue the specific reasons or grounds for saying that the votes in the 21 ballot boxes were not lawfully cast or tampered with.

c)	the 21 ballot boxes were from the following polling places.

Box 07 – Kugamu (Ward # 4)	1,537 votes	
Box 013 – Tega (Ward #8)	1,671 votes	
Box 014 – Tega (Ward #8)	1,671 votes	
Box 015 – Tega (Ward #8)	1,669 votes	
Box 023 - Kingalrui (Ward #10)	 981 votes	
Box 029 – Keltiga (Ward #13)	1,629 votes	
Box 041 – Ogelbeng (Ward #20)	1,058 votes	
Box 044 – Pulgimp (Ward #22	 547 votes	
Box 045 – Pulgimpb (Ward # 22	 552 votes	
Box 046 – Mulga Kentika Ward #23)	 852 votes	
Box 047 – Mulga Kenttika (Ward #23 	 849 votes	
Box 057 – Kagamuga Rural (Ward #29)	 464 votes	
Box 099 – Pungaspup (Ward #6)	 705 votes	
Box 100 – Pungaspup (Ward #6)	 702 votes	
Box 101 – Pungaspup (Ward #6)	 703 votes	
Box 102 – Ults (Ward #7)	1,202 votes	
Box 103 – Ults (Ward #7)	1,246 votes	
Box 104 – Ults (Ward #7)	1,225 votes	
Box 105 – Karagum (Ward #8	 816 votes	
Box 106 - Karagum (Ward #8)	 811 votes	
Box 107 – Karagum (Ward #8)	 793 votes	
		
Total	21,683		

d)	The Third Respondent was declared elected on 34,585 first preference votes. The candidate then on second place was James Yoka Ekip with 9,527 votes. There was no quality check and no elimination done.

2.	The First Respondent fell into error, omitted to carry out his duties properly and acted unlawfully in rejecting the 21 ballot boxes with both open and provincial cast ballot papers in them.

a)	the ballot papers in the ballot boxes were all lawfully cast at proper polling places in accordance with law and returned for scrutiny lawfully.

b)	the Second Respondent failed to bring into the counting, center the 21 ballot boxes for the proper processes to be followed.

c)	the Second Respondent failed to produce at the counting centre the objections raised against the 21 ballot boxes, one at a time, for scrutinizers of candidates to be informed so that the scrutinizers for both Open and Provincial candidates could be given the opportunity to respond to the objections.

d)	the Second Respondent failed to properly inquire and hear objections and answers from all sides before making a decision on objections.

e)	the Second Respondent acted in disregard of legal processes of scrutiny and either took the matter of rejecting 21 ballot boxes with thousands of votes in them so casually or he was under improper influences to reject the 21 ballot boxes.

3.	In the alternative to matters set out under the immediately preceding paragraph, if it be held that the ballot papers in the 21 ballot boxes were unlawfully cast or were otherwise tampered with and so were properly rejected, then, the votes in the 21 ballot boxes were rejected due to errors and omissions and/ or illegal practices on the part of officers and agents of the First Respondent (polling officers and security force members included):

a)	 all officers and agents failed to properly conduct polling or to ensure that proper polling was done and ballot boxes safely returned for scrutiny;

b)	all officers and agents failed to ensure that ballot boxes and ballot papers were protected against abuse and/or other unlawful conduct on the part of third parties;

c)	all officers and agents failed to provide adequate security and exercise due care and attention and good judgment to prevent unlawful and illegal polling or illegal conduct on the part of third parties and/or in conveying ballot boxes back to scrutiny.

4.	The 21,683 votes in the 21 ballot boxes would have made a difference to the result.

a)	the Third Respondent was declared elected with 34,585 first preference votes only.

b)	the Second placed candidate was at 9,527 votes.

c)	No 2nd and 3rd preference votes were counted as no elimination was done."

39.	And the reliefs sought read:

"The Petitioner claims on the basis of the foregoing:-

a)	 a declaration that the election in Hagen Open in the said election is void;

b)	an order that a by-election be held, an

c)	the respondents pay the petitioners' costs."

40.	The statement of facts in EP 10 of 2012 is in similar terms but with a few variations. The variations are in paragraph 2 and 3 and the reliefs sought. These provisions read as follows:

"2.	The votes in the 21 ballot boxes were rejected due to errors and omissions and/or illegal practices on the part of officers and agents of the Second Respondent (polling officers and security force members included):

a)	all officers and agents failed to properly conduct polling or to ensure that proper polling was done and ballot boxes safely returned for scrutiny; 

b)	all officers and agents failed to ensure that the ballot boxes and ballot papers were protected against abuse and/or other unlawful conduct on the part of third parties;

c)	all officers and agents failed to provide adequate security and exercise due care and attention and good judgment or prevent unlawful and illegal polling or other illegal conduct on the part of third parties and/or in conveying ballot boxes back to scrutiny.

3.	The 21,683 votes in the 21 ballot boxes would have made a major difference to the result.

a)	The Third Respondent was declared elected with 34,585 first preference votes only.

b)	The Petitioner who was second place has 9,527 votes.

c)	No 2nd and 3rd preference votes were counted as no elimination was done.

Relief Sought

The Petitioner claims, on the basis of the foregoing:

a)	a re-count of votes with votes in the 21 ballot boxes counted;

b)	a declaration that the election in Hagen Open in the said election is void;

c)	an order that a by-election be held, and

d)	the Respondents pay the Petitioners costs."

Paraphrasing petitions

41.	The petitioners have submitted that their respective petitions should be read as one. Going by that submission, the petitioners allegations per their statements in their respective petitions can be paraphrased as follows:

On 20th July 2012, the Returning Officer, Mr. Gordon Wimb declared Honourable William Duma as the elected member on 34,585 votes with the runner up, Mr. James Yoka Ekip on 9,527 votes. That he did without conducting any quality checks and eliminations. The Returning Officer made that declaration after he rejected 21 ballot boxes containing about 21,683 votes which would have made a major difference in the result. The Returning Officer's decision to reject the 21 ballot boxes was on the basis that, the ballot papers were not lawfully casted and or that they were tampered with. 

The relevant box numbers, Ward areas and number of votes in each box are as follows:

Box 07 – Kugamu (Ward # 4)	1,537 votes	
Box 013 – Tega (Ward #8)	1,671 votes	
Box 014 – Tega (Ward #8)	1,671 votes	
Box 015 – Tega (Ward #8)	1,669 votes	
Box 023 - Kingalrui (Ward #10)	 981 votes	
Box 029 – Keltiga (Ward #13)	1,629 votes	
Box 041 – Ogelbeng (Ward #20)	1,058 votes	
Box 044 – Pulgimp (Ward #22	 547 votes	
Box 045 – Pulgimpb (Ward # 22	 552 votes	
Box 046 – Mulga Kentika Ward #23)	 852 votes	
Box 047 – Mulga Kenttika (Ward #23	 849 votes	
Box 057 – Kagamuga Rural (Ward #29)	 464 votes	
Box 099 – Pungaspup (Ward #6)	 705 votes	
Box 100 – Pungaspup (Ward #6)	 702 votes	
Box 101 – Pungaspup (Ward #6)	 703 votes	
Box 102 – Ults (Ward #7)	1,202 votes	
Box 103 – Ults (Ward #7)	1,246 votes	
Box 104 – Ults (Ward #7)	1,225 votes	
Box 105 – Karagum (Ward #8	 816 votes	
Box 106 - Karagum (Ward #8)	 811 votes	
Box 107 – Karagum (Ward #8)	 793 votes	

The Returning Officer fell into error, omitted to carry out his duties properly and acted unlawfully in rejecting the 21 boxes with the Open and Provincial casted ballot papers in them [although not clearly stated I make the connect] because:

a)	the ballot papers in the ballot boxes were all lawfully cast at proper polling places in accordance with law and returned for scrutiny lawfully.

b)	the Second Respondent failed to bring into the counting center the 21 ballot boxes for the proper processes to be followed.

c)	the Second Respondent failed to produce at the counting centre the objections raised against the 21 ballot boxes, one at a time, for scrutinizers of candidates to be informed so that the scrutinizers for both Open and Provincial candidates could be given the opportunity to respond to the objections.

d)	the Second Respondent failed to properly inquire and hear objections and answers from all sides before making a decision on objections.

e)	the Second Respondent acted in disregard of legal processes of scrutiny and either took the matter of rejecting 21 ballot boxes with thousands of votes in them so casually or he was under improper influences to reject the 21 ballot boxes.

[Then continues for James Yoka Ekip's petition and in the alternative for Simon Sanagke's petition]

The 21 ballot boxes were rejected due to or because of error and omissions and or illegal practices on the part of officers and agents of the Electoral Commission, namely the polling officials and security force members in that:

a)	all officers and agents failed to properly conduct polling or to ensure that proper polling was done and ballot boxes safely returned for scrutiny; 

b)	all officers and agents failed to ensure that the ballot boxes and ballot papers were protected against abuse and/or other unlawful conduct on the part of third parties;

c)	all officers and agents failed to provide adequate security and exercise due care and attention and good judgment or prevent unlawful and illegal polling or other illegal conduct on the part of third parties and/or in conveying ballot boxes back to scrutiny.

No ground for Petitions disclosed

42.	Before any other consideration, one thing that is immediately clear to my mind and something which I raised with counsel at the hearing yesterday morning is this. On the one hand the petitioners are saying the Returning Officer fell into error, omitted to carry out his duties and acted unlawfully in rejecting 21 ballot boxes. On the other hand and in the alternative for petitioner Simon Sanangke, the petitioners are saying the rejection was in order because, the 21 ballot boxes were tainted by errors and omissions and illegal practices on the part of the Electoral Commission's polling officials and security force members. This gives the reader the impression that, the rejection of the 21 ballot boxes was in order given that, no vote that is tainted by errors, omissions and illegal practices can be lawfully included in the counting of votes. That being the case, there is obviously no disclosure or statement of a known ground for a valid election petition supported by sufficient facts in these two petitions. The inevitable consequence then should be a dismissal of the petitions as having no meritorious ground.

43.	Learned counsel for the petitioners tried their best to avoid the above conclusion from being arrived at by saying, their respective clients were claiming that the Returning Officer was wrong in rejecting the 21 ballot boxes and the 21,683 votes in them on his general claim of the votes being unlawfully casted and or being tampered with. They then went on to submit that, if the Returning Officer was right in that, then the unlawful castings and tampering were allowed to occur by the polling officials and security personal. That argument is obviously in the alternative as pleaded in Simon Sanangke's petition and in effect in James Yoka Ekip's petition. This argument with respect does not displace the obvious conclusion mentioned above and is supported by the petitioners own statements in their respective petitions as I have noted above.

44.	 Also as a matter of law alternative pleadings are not permitted in election petitions. A latest statement and application of that principle is in the decision of Lay J (as he then was) in Luke Alfred Manase v Don Pomb Polye. His Honour was there applying the authoritative decision of the Supreme Court in 	Robert Kopaol v. Philemon Embel. That case stands for the proposition that, a petitioner's pleadings must be coherent, clear and complete and must avoid ambiguity, confusion and alternative pleadings. For petitioners must know exactly the grounds for their petitions and must not be equivocal about what they are alleging. If they have alternatives, they have to make a choice for one or the other. They cannot have it both ways.

45.	In this case, the petitioners had a choice of advancing their case along the lines of the Returning Officer, unlawfully and without any good reason rejecting the 21 ballot boxes. Alternatively, they had the option of running their case along the lines of the polling officials and security personal allowing for and facilitating unlawful casting of votes and or tampering of the alleged 21,683 votes in the 21 ballot boxes. If they opted for the former they might have had a chance of success conditional on meeting the requirements of s. 208 (a) as discussed. The second option however is doomed to fail because that option provides the very foundation for the rejection of the ballot boxes and the ballot papers in them. In any event, the petitioners had the option of withdrawing parts of their allegations but they did not. Thus, they are stuck with what they have stated.

46.	In the circumstances, I am left with only one conclusion which is this. Both of the petitions are incompetent for not meeting the requirements of s.208 (a) as interpreted and applied by the Supreme and National Courts as noted in the above discussion and statement of the relevant law.

Other reasons

47.	There are further reasons to conclude that the petitions are incompetent. The first of these reasons is this. A reading of the matters set out in the relevant parts of the petitions as they are, demonstrates no statement of material facts to question the validity of the election result. 

Paragraph 1 in both petitions

48.	If we look at the whole of the basis for the petition in the way the petitioners submit we should, there a number of pertinent questions that are unanswered or unattended to in the petitioners purported statement of the facts in the petitions. Without limiting the list, the questions are these, starting with paragraph 1 in both petitions:

(1)	What is the total number of the eligible and registered voters for each of the wards named?

(2)	How do the petitioners know that there were a total of 21,683 votes in the 21 ballot boxes?

(3)	Were all the total alleged votes of 21,683 out of the 21 ballot boxes valid votes and were valid for inclusion in the count? 

(4)	How was it likely for either of the petitioners securing most of the alleged 21,683 votes?

(5)	How was it unlikely for the member elect, to secure some or more votes from the 21 ballot boxes?

(6)	Were polling conducted at the various ward areas?

(7)	If there were polling:

(a)	Who were the presiding and assistant presiding officers?
(b)	Where did each of the polling take place?
(c)	When were the polling conducted?
(d)	Was there scrutiny at each of the polling by each of the candidates through their scrutineers?
(e)	How many eligible and registered voters turned up at each of the polling places to vote;
(f)	Out of those who turned up, how may were allowed to vote and how many were refused?
(g)	Were the proper process of making and completing a ballot followed in each of the polling locations?
(h)	What was the total number of votes casted in each of the polling stations?
(i)	Were each of the ballot boxes secured to prevent any tampering of or otherwise interfering with of the ballot boxes and if so, how was that done?
(j)	Who was in custody of ballot boxes both before and after the polling?
(k)	Where were each of the ballot boxes kept?

(8)	What was the total registered eligible voters for the electorate and how many of them voted?

(9)	What was the total number of validly casted votes?

(10)	Did the member elect fail to reach the magical 50 + 1% of the total votes counted so as not to be declared on the first preference votes?

(11)	In what way was or would the election result be affected? And

(12)	How is it just to declare the member elected as not duly elected when there is no wrong doing alleged against him personally or by any of his unnamed servants or agents?

Paragraphs 2 in EP 10 and 3 in EP 11 

49.	Next in respect of the allegation around errors, omission and illegal practices of polling officials and security personal which is paragraphs 2 in EP 10 and 3 in EP 11, the following questions, also without limiting the list, remains unanswered or unattended to in the respective petitions:

(1)	What is or are the particular errors, omissions or illegal practices?

(2)	Who are the persons who committed each of the errors, omissions or illegal practices?

(3)	When in terms of time and dates were the unspecified errors, omissions and illegal practices committed;

(4)	Where (place) were the unspecified errors, omissions or illegal practices committed or carried out;

(5)	For whose benefit or why were the unspecified errors, omissions or illegal practices committed?

(6)	At which polling places did the unnamed polling officials failed to conduct proper polling?

(7)	What would constitute a proper polling and in which way the polling officials failed to conduct a proper polling?

(8)	In what way would the ballot boxes have been secured from the unspecified abuse or unspecified unlawful conduct?

(9)	Where and when would the ballot boxes be returned for scrutiny and where or how did the unnamed polling officials failed?

(10)	What illegal or unlawful polling took place, where, when and who was responsible for that?

(11)	Were any of the unnamed offenders, the servants and agents of the declared winner? 

(12)	How did each of the unspecified errors and omissions or illegal practices affected or have the likelihood of affecting the election outcome? And

(13)	How is it just and fair to declare the member elected who is not accused of any wrong doing either directly or through a servant or agent, not duly elected?

50.	The foregoing unanswered or unattended to questions, demonstrate clearly in my view that, the petitions fail to state the material facts in a way that is complete, clear and concise and clearly disclosing a good ground for a successful election petition. Going through each of the matters stated in the petitions, I note that ground 1 in both petitions, as reproduced above, do not state any fact that goes into showing, the Returning Officer committing an error or omission or illegal practice and how that affected the election outcome. In submissions, learned counsel for the petitioners, argued that the Returning Officer committed an error or an illegal act under s. 153A of the Organic Law on Elections. Going by the settled law on this point as noted above, the petition must state the facts which should outline what the Returning Officer was required to do under s.153A and how he failed. Submissions can only have meaning when the foundation is laid in the petition. Here, the petition does not outline what normally occurs under s.153A and what did or did not take place at the counting in this case.

Paragraph 2 in EP 11

51.	Next, paragraph 2 in EP 11, which has been reproduced above speaks of errors, omissions and failures of the Returning Officer. Then without connecting what is stated in that paragraph, the petitioner goes onto talking about all ballot papers in the 21 boxes were legal, the Returning Officer failing to produce them and the objections raised against those boxes, failing to properly inquire into objections and he acted in disregard of the legal process of scrutiny. All these are conclusions in my respectful view. The petitions do not state the facts which lay the foundation and support these conclusions. For instance, there is no statement of a fact such as who raised objections, the nature of the objection, when it was raised and how the objection was raised. Similarly there is no statement that discloses what the correct legal process is by stating the relevant facts that would disclose that and then state further facts that demonstrates the Returning Officer disregarding them.

Paragraph 3 of EP11 and paragraph 2 of EP 10

52.	Turning then to paragraph 3 of EP11 and paragraph 2 of EP 10, I note, these paragraphs talk about errors and omissions of unnamed polling officials and security officers errors and omissions and illegal practices. These paragraphs also talk about failures to conduct proper polling, safe return of the ballot boxes, protection against abuse and or other illegal conduct of third parties. Reading these statements suggests that there were no proper conduct of polling, ballot boxes were not secured, tampered with and abused by third parties. There is no statement of facts laying the foundation for the suggestions of no proper polling, abuse and other illegal activities conducted against the 21 ballot boxes and the ballot papers contained in them. These paragraphs also do not state what particular acts of abuse, illegal conduct and improper conduct of polling occurred with the names of the persons who were responsible and when and where these events took place. 

Paragraph 4 in EP 11 and paragraph 3 in EP 10

53.	 Next is paragraph 4 in EP 11 and paragraph 3 in EP 10 which merely state the number of votes secured by the winner of the election and that of the runner up, with a statement that the 21,683 votes would have made a major or a difference. Whilst there were submissions on the use of the term "difference" as opposed to "affected" the result of the election and there is sound statutory foundation for the arguments against the use of the word "difference", I am of the view that the effect is the same. Hence the choice of word is of no consequence even thought a strict approach would require a use of the wording used by legislation. What matters is the question of do the petitions state facts which demonstrate how the election result was or is likely to be affected. The answer to that question is simply no. There is no factual foundation either in these paragraphs or the petition as a whole. 

Prayer for relief

54.	This leads me then to the next matter for consideration which is the prayer for relief. Both petitions seek to void the election. Voiding of elections can occur only under s. 215 and 218 (1) of the Organic Law on Elections. This can happen only on groups of bribery without more and illegal practices, errors, omissions and irregularities committed by persons other than the winner of the election provided the conduct was likely to affect the election result and that it is just to declare the winner of an election who had no knowledge or authorized the illegal practices, not duly elected.

55.	In this case, there is no allegation of any wrong doing against the winner of the election. There is also no demonstration of how the result was likely to be affected and how or why it is just to declare the third respondent who was declared elected was not duly elected. For the reasons earlier given, I do not find the petitions laying the foundation for voiding the election for the Hagen Open Seat. If anything, the petition is mainly centred on s. 218 (1) and s. 215 talking about some unidentified errors, omissions, and illegal practices only, which is only one part. The other necessary and important part is to state with the support of material facts that these unspecified errors, omissions or illegal practices affected or are likely to affect the election outcome and that it is just that the third respondent who was declared elected was not duly elected. That is not done here.

Sufficiency of Statement of Attesting Witnesses Address

56.	Finally, I now turn to a consideration of the remaining issue of, is the statement of the attesting witnesses' address as "8 Mile, National Capital District" in EP 11of 2012, sufficient for the purposes of s.208 (d) of the Organic Law on Elections. The starting point is s. 208 (d). In order to properly understand the requirement for witnesses attesting with their names, occupations and addresses disclosed, I think it important that we should consider the entire scheme of s. 208. 

57.	I have already expressed the view that all the decisions centred around s. 208 and in particular s.208 (a), clearly indicate that there is a need to carefully weigh the two equally important needs of protecting the electoral process from petitioners who come with wild sensationalist, unmeritorious and unsustainable allegations and a voter's right to challenge the validity of an election outcome that has not come the correct and proper way on grounds that are properly supported by facts that have merit and are not speculative, sensationalist and unsustainable. Hence, there is no law against meritorious and sustainable allegations being permitted to challenge election results out of elections that have been improperly conduct and the return of an election unduly returned. I also already expressed the view that, indeed s. 208 of the Organic Law on Elections could be seen as a filtering process through which meritorious and sustainable allegations which have clarity around them with the relevant and material facts relied upon sufficiently stated, can be allowed to proceed to a hearing while unmeritorious and unsustainable allegations or allegations which lack clarity and completeness around the material facts relied upon or required can be prevented from proceeding to a hearing. 

58.	In that context, the whole scheme of s. 208 is in my view clear. Only a candidate at the election in dispute or a person who was qualified to vote at the election can sign and bring a petition.The petition must set out material facts which the petitioner, relies on to invalidate an election or return. The facts must be stated in the way specified by the various judicial pronouncements. Next the petition must specify the relief that is sought, which relief is something the Organic Law on Elections allows for in the particular context of the grounds stated in the petition.Then two persons must attest to the petition and give their respective names, occupations and addresses. As to what is meant by "be attested" and the purpose of requiring attestation has never being considered before in our jurisdiction. Hence, we are considering these questions for the first time here. Only the question of sufficient statement of an attesting witness' occupation and address and why they are required has been already considered. I will get back to the questions that are raised for the first time in our jurisdiction a little later. For now let me complete the scheme under s. 208. The final step in the scheme under s. 208 is to file the petition "in the Registry of the National Court at Port Moresby or at the court house in any Provincial headquarters within 40 days after the declaration of the result of the election...". Failure to adhere to this scheme which is considered mandatory have resulted in a dismissal of many petitions.

Purpose for requiring petitions to "be attested"

59.	Bearing this scheme in mind, I now turn to a consideration of the questions of what is the purpose for requiring petitions to "be attested" and what is the meaning of the phrase "be attested"? I think the purpose of requiring attestation and who should be attesting will become clearer if we first consider and establish the meaning of the term "attested" as used in s. 208 (d). Hence we start with what is the meaning of the term "attested". Attested is the past tense of the word "attest". The term has two meanings, one in the positive sense and the other in the negative. As s. 208 requires a positive act of attesting to a petition we should only concern ourselves with the positive meaning. Accordingly, I note that the word "attest" according to most dictionaries means, "prove", "confirm", "verify", "declare", "testify" or "substantiate". If we employ any of these words in place of the phrase "be attested" in s. 208 (d), that phrase could read something like "be proved", "be confirmed", "be verified", "be testified" or "be substantiated". But the most appropriate ones would be "be confirmed" or "be verified".

60.	Submissions of the learned counsel for the third respondent and the petitioner, Simon Sanangke referred me to the requirements for attestations of wills under s. 13 of the Wills, Probate Administration Act, and not requiring prove of certain documents by attesting witnesses under s. 32 of the Evidence Act. This offers us some further assistance. In particular the former is most helpful. That provision in relevant parts reads as follows:

"13.	Execution of will.

(1)	Subject to this Part, a will is not valid unless it is written and executed in the following manner:—

(a)	subject to Subsection (3), it is signed at the foot or end by the testator or by some other person in his presence and by his direction; and

(b)	subject to Subsection (3), the signature is made or acknowledged by the testator in the presence of two or more witnesses present at the same time; and

(c)	the witnesses attest and subscribe the will in the presence of the testator.
..

(3)	Notwithstanding Subsection (1)(a) and (b), a will may be signed or acknowledged in the presence of, and may be attested and subscribed by, an authorized witness."
(Underlining mine)

61.	In my view a combined reading and consideration of these provisions and the positive dictionary meaning given to the word "attest", means that the attesting witness under s. 208 (d) has to be someone who witnesses not just a document but also he or she is someone who witnesses and is in a position, to verify, confirm, substantiate, testify, certify, prove, or otherwise demonstrate an event or occurrence stated in the petition. Such a person would be someone who lives in the electorate the subject of the disputed return, or someone who is eligible to vote in that electorate. But more importantly, in either case, the attesting witness must be someone who is well versed with the facts relied on to vitiate the election return and if need be, be in a position to testify, confirm, verify or prove all or any of those facts. This appears clear from the opening line of s. 208, which says "A petition shall". For the purposes of s. 208 (d) "[a] petition shall ... be attested". This is not the same to say, the signing of the petition by a petitioner or anything else a petitioner or anyone else does be attested. The provision specifically requires a petition be attested to by two witnesses, which means the whole of the petition, the contents of which the witness must be aware and be in a position to testify, confirm, substantiate or prove. This makes a lot of sense and ties in well with the fact that election petitions are serious matters and is a special process or jurisdiction with special and specific requirements which sets it apart from all other process in the National Court.

62.	The above view is consistent with the special nature of election petitions and what the Courts have already held in respect of attesting witnesses giving their names, occupations and addresses in a way that is sufficient to easily and readily identify the witnesses and locate them. Before I get into a discussion and application of the law regarding the requirement to give addresses, I make it clear that what we have discussed above will not be applied to this case, because the parties did not come ready for argument and a decision on that at the first place. In future however, I would expect that, this would be appropriately considered and where applicable, apply them.

Provision of attesting witnesses' address

63.	Now returning specifically to the requirement to give addresses, I note that one of the earliest decisions on point is the decision of Sheehan J in Agonia v. Karo. There is Honour said:

"The whole purpose of requiring that an attesting witness supplies name, occupation and address is so that the witness is readily identified and able to be located. Accordingly, I believe that the address requirement of the subsection is that an attesting witness should state his normal residential address. The adequacy of that address, however, might well be determined by a witnesses' personal circumstances, but it should be the best succinct description available. In a large city, it may require a street address or even Section, Lot number and Suburb. In the case of a villager, simply his village."

64.	In Albert Karo v. Lady Kidu His Honour Injia J (as he then was accepted what Sheehan J said in these terms:

"In my view, OLNE s. 208 (d) simply requires an 'address'. Section 208 (d) does not require a residential address. I agree with Sheehan, J's statement of the purpose of s. 208 (d). I would also agree with His Honour that the requirement to specify 'residential address' on a Petition may depend on the 'personal circumstances' of the witness. In my view, s. 208 (d) should be looked at as a whole. If by the name, occupation, work place and postal addresses of the witnesses stated in the petition collectively render it possible to easily identify and locate the witness, then it is not necessary for the witness to give his residential address."

65.	In Albert Karo's case, the Court accepted as sufficient compliance of the requirements of s. 208 (d) the attesting witness giving his details in these terms: Allen Mahuru, Administrative Officer, Motu-Koita Assembly, P O Box 81, KONEDOBU, National Capital District. In the earlier case, the attesting witness gave their village names as their addresses. The Court accepted that has sufficient compliance of the requirements of s. 208(d). In both cases, the Court was satisfied that, the witnesses could be easily identified and located in their particular circumstances with the use of the information they provided.

66.	In the present case, the attesting witnesses give their respective names, their respective occupations as taxi drivers and their address as "8 Mile, National Capital District". Proceeding along the lines of all of the authorities which say that the requirements of s. 208 (a) must be strictly met in terms of stating sufficient facts and the purpose of requiring the names, occupations and addresses of attesting witnesses, the Respondents argue that, simply stating "8 Mile" in the National Capital District without more is insufficient. They also submit that the statement is quite confusing because it does not indicate whether the witnesses live in the 8 Mile area or that they were attesting to the petition at "8 Mile". They go on to argue, an employment of either the word "of" or "at" in front of the phrase "8 Mile" could have made a lot of difference. Moreover, they argue that, with or without the use of either of these words, the statement, "8 Mile" is insufficient disclosure of the attesting witnesses' address. This is so, they submit because 8 Mile is such a big area that one would have difficulty locating the witnesses without the assistance of further information. Such further information could include the names of their employers, and disclosure of some reference points such as a school, store, or church from which one's attempt at locating the witness could start and complete.

67.	I am of the view that, we cannot have double standards applying as to how the strict requirements of s.208 must be met. There has to be consistency throughout. The accepted position now as would be clear from the earlier discussions and statement of the law around s. 208 (a) is that, there must be a statement of the relevant and material facts. Taking that position as a guide, I am of the view that, attesting witnesses must give sufficient facts about their names, whether they are known by only one name or another name also, their occupation in terms of what they do for living, their address by reference to Section and Lot numbers if that is applicable or street or road names, or village names, or names of settlements. Where the villages or settlements are big, some reference point for their ready location, such as a nearby school, church, river, creek, block number or names of any structure of easy identification and location should be given. Also if they are formally or informally employed and are usually not home most of the time, their work place addresses could be useful additional information. There can be no prescription of what address details attesting witnesses should provide as long as they provide sufficient details to easily locate them.
 
68.	Applying what I have just said to the case at hand, I am of the view that merely stating "8 Mile" is not sufficient. I accept the Respondents arguments that, 8 Mile is a big area. It would take much more time and effort for anyone to locate someone, unless that person is well known in the area as in the case of a church pastor or businessman in the area or a community leader. If the witnesses, also gave the name of the taxi company they work for as did the attesting witnesses in the Albert Karo case, or they gave some reference point for their location, that could have assisted. What is stated in the petition is not sufficient, as they fail to help meet the purpose of the requiring the attesting witnesses' addresses. This provides further reason for this Court to find that the petition EP 11 is incompetent. 

In summary

69.	In summary, I find that both of the petitioners failed to state sufficient and material facts forming the foundation for a good ground for their respective petitions. The petitions contain contradictory and or alternative pleadings or statement of facts, which is not permitted. There is some statement of facts, but they fall short in some serious and material respects which leaves the petitions in a state of incompleteness with many important or fundamental questions remaining unanswered or unattended to in the petitions. These are not merely technical defects or an exercise in knit-picking but defects in most fundamental parts or the heart of the petition. Some possible grounds for petition have been stated, but they lack foundation in relevant and material facts. The consequences of all of these is that, the strict requirements of ss. 208 (a) (and s.208 (d) for EP 11 of 2012) have not been met by these two petitions, which renders the whole of the two petitions, incompetent and must therefore be dismissed in their entirety. 

Final orders

70.	Accordingly I make the following orders:

(1)	The whole of EP 10 and EP 11 of 2012 be dismissed on grounds of incompetence;

(2)	Costs shall follow that event, that is to say the Petitioners shall pay the Respondents' Costs.

(3)	The Security for costs deposited under s. 209 of the Organic Law on Elections shall be forthwith released and apportioned equally between the Respondents.

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Bomai Lawyers: Lawyers for the Petitioner in EP 10 of 2012
Elemi Lawyers: Lawyers for the Petitioner in EP 11 of 2012.
Kongri Lawyers: Lawyers for the First Respondent in Both EP 10 and 11
Niugini Legal Practice Lawyers of the Second Respondent in both EP 10 and 11
Harvey Nii Lawyers: Lawyers the Third Respondent in both Petitions.