N4928

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

EP NO 52 0F 2012

IN THE MATTER OF THE ORGANIC LAW
ON NATIONAL AND LOCAL-LEVEL GOVERNMENT ELECTIONS
AND A DISPUTED RETURN FOR THE USINO-BUNDI ELECTORATE IN THE 2012 GENERAL ELECTION

PETER CHARLES YAMA
Petitioner

V

ANTON YAGAMA
First Respondent

STEVEN BIKO, RETURNING OFFICER
Second Respondent

ANDREW TRAWEN, ELECTORAL COMMISSIONER
Third Respondent

ELECTORAL COMMISSION OF PAPUA NEW GUINEA
Fourth Respondent

Madang: Cannings J
2012: 12, 14 December

ELECTIONS – petitions – objection to competency of petition – whether objector entitled to rely on grounds of objection not included in notice of objection to competency – whether grounds relied on in petition adequately pleaded facts and grounds relied on.

At the hearing of the objection to competency of an election petition the parties objecting argued the two grounds set out in their notice of objection to competency and introduced two new grounds not included in their notice of objection. The Court allowed the respondents to argue all grounds.

Held:

(1)	The issue of competency can be raised at any stage of the proceedings, so it is permissible for a respondent to travel outside the boundaries of the notice of objection, provided that the petitioner is given an adequate opportunity to respond to the new grounds. Any prejudice caused to the petitioner can be accommodated by an order for costs.

(2)	A petition alleging errors or omissions by election officers must per force of Section 208(a) of the Organic Law "set out the facts relied on to invalidate the election or return", which means it is necessary to plead not only the errors and omissions but also that they did "affect the result of the election" (as required by Section 218(1) of the Organic Law).

(3)	Here, the petition with one exception adequately set out the facts relied on to invalidate the election, including adequately pleading that the result of the election was likely to be or was affected by the illegal practices and errors or omissions pleaded.

(4)	The exception was ground 3 of the petition, which was vague and confusing, and the objection to it was sustained. Other objections were refused. Accordingly the petition will proceed to trial on grounds 1, 2, 4 and 5.

Cases cited

The following cases are cited in the judgment:

Delba Biri v Bill Ninkama [1982] PNGLR 342
Holloway v Ivarato [1998] PNGLR 99
Jimson Sauk v Don Pomb Polye and Electoral Commission (2004) SC769
Norbert Kubak v Andrew Trawen EP No 2 of 2012, 15.11.12
Paias Wingti v Kala Rawali (2008) N3285
Sai-Sail Beseoh v Yuntivi Bao (2003) N2348
Sir Arnold Amet v Peter Charles Yama (2010) SC1064

OBJECTION

This is a ruling on an objection to competency of an election petition.

Terminology and dates

In this judgment:

•	'the Organic Law' refers to the Organic Law on National and Local-level Government Elections;

•	dates refer to the year 2012 unless otherwise indicated.

Counsel

N Kiuk, for the Petitioner
P Kuman, for the First Respondent
H Nii, for the Second, Third and Fourth Respondents

14 December, 2012 

1. CANNINGS J: This is a ruling on an objection to the competency of an election petition. The petition was filed by an unsuccessful candidate Peter Charles Yama disputing the election of first respondent Anton Yagama as member for Usino-Bundi Open in the 2012 general election. The petition is based on five grounds which allege various errors and omissions in the conduct of both the polling and the counting, committed by some of the other parties to the petition and their associates, those parties being returning officer Steven Biko (second respondent), the Electoral Commissioner (third respondent) and the Electoral Commission (fourth respondent). No illegal practices are alleged directly against Mr Yagama.

2. The second, third and fourth respondents filed a notice of objection to competency which relies on two grounds. At the hearing of the objection other grounds were introduced by their counsel Mr Nii. The objection to competency is supported by the first respondent whose counsel Mr Kuman made submissions supporting all grounds of objection.

GROUNDS OF OBJECTION 

Grounds in notice of objection

3. The first ground in the notice of objection is a general one, consisting of two sub-grounds. Ground 1.1 alleges that the petition was filed outside the 40-day period after the date of declaration of the result set by Section 208(e) of the Organic Law. Ground 1.2 alleges that the petition is defective as it does not plead the date of declaration of the result.

4. The second ground in the notice of objection consists of four sub-grounds, which correspond to the first four grounds of the petition. Ground 2.1 alleges that ground 1 of the petition is defective. Ground 2.2 alleges that ground 2 of the petition is defective. Ground 2.3 alleges that ground 3 of the petition is defective. Ground 2.4 alleges that ground 4 of the petition is defective.

New grounds

5. Mr Nii introduced two new grounds at the hearing. The first is a general one, alleging that the petition is fatally flawed as it fails to plead that the result of the election was likely to be affected or that it was affected by the illegal practices, errors and omissions alleged. This ground of objection is alluded to in some sub-grounds of the notice of objection but not to the extent it was in submissions at the hearing. The second is a specific ground of objection in relation to ground 5 of the petition.

6. Mr Kiuk for the petitioner objected to the introduction of any new grounds, arguing that a respondent should be confined to arguing the grounds set out in the notice of objection. Frankly the argument makes an agreeable lot of sense but I am persuaded by Mr Nii's submission that it is permissible in view of a recent Supreme Court decision for a respondent to travel outside the boundaries of the notice of objection, provided that the petitioner is given an adequate opportunity to respond to the new grounds. Any prejudice caused to the petitioner by doing this can be accommodated by an order for costs against the respondent. The Supreme Court decided in Sir Arnold Amet v Peter Charles Yama (2010) SC1064 that the issue of competency can be raised at any stage of the proceedings. It extended that proposition to the point where it was held that when the Supreme Court is undertaking a review of the National Court's decision to uphold a petition it can review the competency of the petition even if no objection to competency was made in the National Court. That wide approach to consideration of grounds of objection to competency was applied recently by Kariko J in Norbert Kubak v Andrew Trawen EP No 2 of 2012, 15.11.12, where a petition was dismissed as incompetent even though no notice of objection to competency had been filed.

7. I will deal with the grounds of objection in this order:

1	General objection re filing outside 40 days (ground 1.1 of notice)
2	General objection re failure to plead declaration date (ground 1.2 of notice)
3	General objection re failure to plead effect on result (new ground)
4	Specific objection re ground 1 of the petition (ground 2.1 of petition)
5	Specific objection re ground 2 of the petition (ground 2.2 of petition)
6	Specific objection re ground 3 of the petition (ground 2.3 of petition)
7	Specific objection re ground 4 of the petition (ground 2.4 of petition)
8	Specific objection re ground 5 of the petition (new ground).

1	GENERAL OBJECTION RE FILING OUTSIDE 40 DAYS

8. Mr Nii submits that the petition was filed outside the 40-day period after the declaration of the result stipulated by Section 208(e) of the Organic Law. The submission is flawed as the petition pleads (in ground 5.09) that the declaration was made on 27 July. The date 40 days after that is 5 September. The petition was filed on 29 August, well within time. This ground of objection is dismissed.

2	GENERAL OBJECTION RE FAILURE TO PLEAD DECLARATION DATE

9. Mr Nii submits that the petition fails to plead the actual date of declaration. The argument is centred on the preamble to the petition, which consists of five paragraphs leading into the meat of the petition, which sets out its five grounds. The preamble states amongst other things that there were 41 candidates and provides the tallies of the top three candidates after the 37th elimination, at which point, on 26 July, the returning officer Mr Biko declared that the election had failed. Mr Nii points out that the preamble does not state what happened after the declaration of a failed election. It simply states that the petitioner disputes the election of Mr Yagama. It is incomplete and defective and fails to state the material facts.

10. There is at first glance some merit in Mr Nii's submission. The preamble is incomplete. It does not provide the bird's-eye view of the election and the declaration and the petition which would be expected to be provided. However, the date of the declaration and the circumstances in which it was made are pleaded elsewhere in the petition, in paragraph 5.09, where it is stated that the declaration was made on 27 July. Mr Nii was unable to point me to any law that prescribes the precise form in which a petition is to be drafted. It seems that the form of a petition is a matter of practice and convention. There is no requirement even to have a preamble and then to plead numbered grounds and then to make a prayer for relief. The requirements of a valid petition are prescribed by Section 208 (requisites of petition) of the Organic Law, which states:

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).

11. I agree with Mr Nii that it is necessary in view of the Supreme Court decisions in Delba Biri v Bill Ninkama [1982] PNGLR 342 and Holloway v Ivarato [1998] PNGLR 99 that the requirements of Section 208 of the Organic Law be strictly complied with and that the facts relied on by the petitioner be clearly set out. I also agree that the date of declaration of the result is one of the facts that should be pleaded in the petition in order to meet the requirements of Section 208(a) and I am satisfied that the date has been pleaded. This ground of objection is dismissed.

3	GENERAL OBJECTION RE FAILURE TO PLEAD EFFECT ON RESULT

12. Mr Nii submitted that as all grounds of the petition allege that electoral officials were guilty of errors or omissions, the petition must meet the requirements of Section 218(1) of the Organic Law, which says that only errors and omissions that actually affect the result of an election can vitiate the election. Section 218(1) (immaterial errors not to vitiate election) states:

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

13. I uphold that submission. A petition alleging errors or omissions by election officers must perforce of Section 208(a) of the Organic Law "set out the facts relied on to invalidate the election or return", which means it is necessary to plead not only the errors and omissions but also that they did "affect the result of the election" (as required by Section 218(1) of the Organic Law). A nexus or causal connection must be pleaded between the errors and omissions and the result of the election. As Injia J, as he then was, stated in Sai-Sail Beseoh v Yuntivi Bao (2003) N2348:

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

14. Mr Nii submits that the petition fails to meet those requirements because even assuming for the sake of the argument that the errors and omissions are pleaded with sufficient clarity the petition does not demonstrate how those errors and omissions affected the result. The petition does not even plead what the result was. It only goes as far as the 37th elimination.

15. The petitioner's response is to say that the reason his petition is short on detail as to the actual result – the exact number of votes secured by the winning candidate and those other candidates remaining after the 37th elimination, and the actual winning margin – is that this information is not known; and the reason it is not known is that, as pleaded in the petition, after the 37th elimination the returning officer Mr Biko declared a failed election. That was on 26 July. Then the next day, 27 July, the declaration was made by someone else, James Apamia.

16. Mr Kiuk for the petitioner supported this explanation for the petition being filed without the final tallies by drawing my attention to the pre-trial directions of Makail J of 27 September, which obliged the petitioner to make a request in writing to the fourth respondent "to produce all relevant documents pertaining to Usino-Bundi electorate for 2012 National Elections" by 28 September, and the fourth respondent to respond to the request by 5 October. I have sighted the letter of request, which complied with the court's directions, and I accept Mr Kiuk's assurance from the bar table (which was not contradicted by Mr Nii) that the request has, two months later, still not been met by the Electoral Commission. I should add that I allowed this 'evidence to come from the bar table' as this was to do with one of the new grounds of objection introduced by Mr Nii without notice.

17. This is a serious matter as the fourth respondent is not complying with a direction of the National Court and it has been in continuing breach of the order for more than two months (since 5 October). So all this time it has been preventing the petitioner getting access to the information which it now says – without notice – is missing from his petition. This is very unfair.

18. Mr Kuman submitted that though the Commission might be in breach of the direction, getting access to the detailed results wasn't going to be any use to the petitioner as he could not amend his petition. A petition cannot be amended after the expiration of 40 days after the date of the declaration and the deadline had already expired when the direction was given. The 40-day time limit for amending a petition comes from Section 208(e) of the Organic Law and from the decision of the Supreme Court in Delba Biri v Bill Ninkama [1982] PNGLR 342. The petition was fatally defective from the outset and all chances of curing its defect have long passed.

19. Mr Kuman's contribution to this conundrum is gratefully acknowledged but I still cannot help but think that this is very unfair conduct on the part of the Electoral Commission: it wants to use its continuing breach of a direction (equivalent to an order) of the National Court – which by itself is a very serious matter – to the detriment of a petitioner. Such conduct should not be condoned, which I feel is what would happen if I upheld this objection. But how can the Court deal with what sounds like sound technical arguments put by Messrs Nii and Kuman? The answer is provided by the Organic Law, Section 217 (real justice to be observed), which states:

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

20. These should not be hollow words. They are in a Constitutional Law and demand a fair, large and liberal interpretation and application. I will apply the dictates of Section 217 to the present ground of objection. In the special circumstances of this case, I will put to one side the legal technicalities that the respondents urge me to follow and take principal guidance from the substantial merits and good conscience of the case. I have formed the firm view that the Electoral Commission has behaved unlawfully and unfairly during the pre-trial period and its unfairness has continued by the manner in which it has raised this particular objection without notice. So, enlivened by the evidence and information that has become available to the Court, I am satisfied that the petitioner has pleaded, as best as he reasonably could, the results of the election and has pleaded as best as he reasonably could how the errors and omissions he relies on affected the result of the election. This ground of objection is dismissed.

4	SPECIFIC OBJECTION RE GROUND 1 OF PETITION

21. Ground 1 of the petition alleges that Mr Biko was appointed as returning officer over the objection of the petitioner which was based on Mr Biko's association with one of the candidates, the then sitting member, Samson Kuli; that Mr Biko continued to associate with Mr Kuli during the election period; that Mr Biko appointed two assistant returning officers of his choice despite having no power to do so; that he improperly scheduled and conducted polling in a number of areas which resulted in many eligible voters not casting their votes; that he acted outside his powers by declaring a failed election after the 37th elimination; and that his actions tainted the election process from polling to counting to the eventual declaration.

22. The respondents assert that this ground fails to plead material facts and fails to plead with clarity how the alleged errors and omissions affected the integrity, impartiality and independence of the whole election process and fails to plead necessary details such as which voting areas were affected and whether the alleged errors and omissions affected the result of the election. It was also suggested that each ground of a petition must be capable of supporting itself and this one does not as it is too vague and cross-refers to other grounds.

23. I agree that this is a rather general ground of the petition however I do not uphold the suggestion that the court should consider each ground of a petition and require that it support the conclusion that the errors or omissions alleged within it actually affected the result of the election. As I indicated in Paias Wingti v Kala Rawali (2008) N3285 it is not correct for the court to microscopically consider each ground of a petition and require that it support the conclusion that the errors or omissions alleged within it actually affected the result of the election. The court must consider a ground in the context of the whole petition. This ground contains significant allegations of errors and omissions which if upheld could reasonably be expected to be found to have affected the result of the election. This ground of objection is dismissed.

5	SPECIFIC OBJECTION RE GROUND 2 OF PETITION

24. Ground 2 of the petition makes two categories of allegations. First it alleges that Joe Yama was improperly appointed as assistant returning officer for the Bundi Local-level Government area as he is an adopted son of Mr Yagama and that Mr Joe Yama committed a number of errors and omissions that affected the final outcome of the election, for example he deliberately permitted double voting in 11 polling areas and appointed polling officials from Mr Yagama's area; he became directly involved in Mr Yagama's campaign activities; and then he took control of the counting without allowing other assistant returning officers to perform their duties; he did not conduct proper quality checks and balances.

25. The second set of allegations concerns the circumstances in which a 'failed election' was declared on 26 July at 6.30 pm by Mr Biko and then it is alleged that the Provincial Election Steering Committee directed James Apamia to complete the elimination process, which he did on 27 July, resulting in Mr Yagama being declared the winning candidate.

26. The respondents argue that ground 2 of the petition is defective as it fails to plead material facts and fails to plead the number of actual returns against each polling area to verify whether there was illegal voting. Each allegation in ground 2 is vague, short on particulars and begs too many questions, Mr Nii submits. For example as to the allegation that Mr Joe Yama appointed polling officials from Mr Yagama's area, Mr Nii asserts that the following particulars are missing: What were the names of those officials? When were they appointed? What errors or omissions did they commit? How many votes did their errors or omissions affect? How was the result of the election affected? 

27. I do not agree that this level of detail is necessary. The gist of the allegations is in my opinion clear. The material facts are pleaded with sufficient clarity. This ground of objection is dismissed.

6	SPECIFIC OBJECTION RE GROUND 3 OF PETITION

28. This ground of the petition also makes allegations against Mr Joe Yama and Mr Biko. Mr Joe Yama is alleged to have allowed unauthorised persons to conduct the counting to manipulate and facilitate Mr Yagama's election victory. Mr Biko is alleged to have undermined a duly appointed assistant returning officer by appointing an unauthorised person.

29. The names are pleaded but I agree with the respondents' argument that the allegations are vague and confusing. Ground 3 of the petition is defective as it fails to plead material facts and fails to plead the actual number of votes affected by the alleged errors and omissions or how they affected the result of the election. This ground of objection is sustained.

7	SPECIFIC OBJECTION RE GROUND 4 OF PETITION

30. This ground of the petition alleges failure to conduct polling at designated places, delayed polling, double-voting and underage voting affecting hundreds of votes at a number of villages and polling areas, including Koike, Forogo, Karisokra, Snopas, Nimbla, Gunj, Bokamamap, and Gundai.

31. The respondents argue that ground 4 is defective as it fails to plead material facts and fails to plead any error of law and does not plead with clarity how the alleged errors and omissions affected the result of the election.

32. This is in fact the most detailed ground of the petition. The gist of the allegations is in my opinion clear. The material facts are pleaded with sufficient clarity. This ground of objection is dismissed.

8	SPECIFIC OBJECTION RE GROUND 5 OF PETITION

33. This ground of the petition alleges errors and omissions at the counting centre. It is alleged that 3,000 to 4,000 votes belonging to the petitioner were improperly exhausted or included in the count of votes for Mr Yagama or other candidates.

34. The respondents argue that the whole ground is speculative. I agree that some of it is but not to the extent that the pleadings are not clear. The gist of the allegations is in my opinion clear. The material facts are pleaded with sufficient clarity. This ground of objection is dismissed.

CONCLUSION

35. When considering the matters raised by the respondents I have been mindful of the need for the National Court to exercise caution when deciding whether to dismiss a petition. The view has been expressed by the Supreme Court recently that perhaps an overly strict approach has been taken in the past. A number of petitions have been dismissed at the preliminary stage, leaving substantial complaints and allegations about the conduct of elections un-answered. For example, in Jimson Sauk v Don Pomb Polye and Electoral Commission (2004) SC769, the Supreme Court (Sakora J, Sevua J, Gavara-Nanu J) said:

Because of the frequent nit-picking, technical objections raised in the guise of real substantive issues of competency or jurisdiction (based either on ss 208, 209 and 210 Organic Law, supra, or ss 50 and 103 Constitution), some very serious and wholesale irregularities, not to mention blatant illegal practices, at the campaign, polling and counting stages of an election more often than not escape judicial scrutiny and remedy. So much so that the Constitutional authority whose direct duty and responsibility it is to organize, conduct and complete free and fair elections jumps on the bandwagon, as it were, to suppress (or have struck out or dismissed) any complaints about or challenges to the conduct of the elections.

36. I have taken those views into account, while at the same time being mindful of my obligation to apply the prevailing law which, as emphasised by Mr Nii, is still as expressed by the Supreme Court in Biri v Ninkama: that an election petition must comply strictly with the requirements of Section 208 of the Organic Law.

37. Only one of the respondents' objections – to ground 3 of the petition – has been sustained. The petition shall with the exception of ground 3 proceed to trial.

ORDER

(1)	The objection to competency in relation to ground 3 of the petition is sustained, the objections to competency of other parts of the petition are dismissed.

(2)	The petition shall with the exception of ground 3 proceed to trial in accordance with directions of the Court.

(3)	The question of costs is reserved pending submissions by the parties.

Ruling accordingly
____________________________________________________

Nikiuma Lawyers: Lawyers for the Petitioner
Kuman Lawyers: Lawyers for the First Respondent
Harvey Nii Lawyers: Lawyers for the Second, Third and Fourth Respondents